judge_norm: JONATHAN B KRAMER

condition: shoulder

text:
Citation Nr: 1405000
Decision Date: 02/04/14    Archive Date: 02/14/14

DOCKET NO.  08-20 164	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana

THE ISSUES

1.  Entitlement to service connection for a right shoulder disability, to include arthritis.

2.  Entitlement to service connection for a left shoulder disability, to include arthritis.

3.  Entitlement to service connection for a right wrist/hand/finger disability, to include arthritis.

4.  Entitlement to service connection for a left wrist/hand/finger disability, to include arthritis.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Megan Marzec, Associate Counsel

INTRODUCTION

The Veteran had active service from January 1969 to January 1973, from January 1980 to December 1981, and from January 1982 to July 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  This case was previously before the Board in September 2009 and November 2011, at which time the issues currently before the Board were remanded for additional development.  The case has now been returned to the Board for further appellate action.

The Board notes that in addition to the paper claims file there is a Virtual VA electronic claims file associated with the Veteran's claim.

FINDINGS OF FACT

1.  The evidence of record does not show that the Veteran has a right shoulder disability that is etiologically related to service.

2.  The evidence of record does not show that the Veteran has a left shoulder disability that is etiologically related to service.

3.  The evidence of record shows that, giving the Veteran the benefit of the doubt, the Veteran has residuals of a fracture in his right hand that occurred during active service.

4.  The evidence of record does not show that the Veteran has a left wrist/hand/finger disability that is etiologically related to service.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a right shoulder disability have not been met.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303 (2013).

2.  The criteria for service connection for a left shoulder disability have not been met.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303 (2013).

3.  A right hand disability was incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1131, 1507 (West 2002); 38 C.F.R. �� 3.102, 3.303 (2013).

4.  The criteria for service connection for a left hand/wrist/finger disability have not been met.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103, 5103A (West 2002); 38 C.F.R. �� 3.159, 3.326(a) (2013).

The Board finds that VA's duty to notify the Veteran has been met.  The record reflects that prior to the initial adjudication of the Veteran's claims for service connection, the Veteran was mailed a letter in May 2005 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The May 2005 letter did not provide the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  However, the record reflects that the Veteran received Dingess notice in a March 2006 letter, prior to the initial adjudication of the claim.

VA's duty to assist the Veteran has also been met.  Service treatment records (STRs), and identified VA treatment records have been associated with the claims file.  Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim.  The Board is also unaware of any such evidence.

VA examinations were provided in January 2005, November 2005, and December 2011 in order to ascertain the severity of the Veteran's claimed disabilities.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, as discussed below, the VA examination reports are adequate.  Thus, VA's duty to assist with respect to obtaining a VA opinion has been met.  See 38 C.F.R. � 3.159(c)(4) (2013).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. � 3.303(b).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. � 3.309(a).  The theory of continuity of symptomatology under 38 C.F.R. � 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. � 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Board notes that arthritis is listed as a chronic disease under 38 C.F.R. � 3.309(a); therefore the claimed disabilities may be subject to service connection based on continuity of symptomatology assuming that they involve arthritis.

Moreover, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, may be presumed to have been incurred in service if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. �� 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 1507 (West 2002); 38 C.F.R. � 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

A review of the service treatment records shows a variety of musculoskeletal complaints during the Veteran's active service.  In August 1970, the Veteran complained of a sore right shoulder and was diagnosed with muscle strain.  In April 1971, the Veteran complained of a sore right index finger after an injury the week prior.  The examiner noted that a wound had healed and a callus was forming.  In January 1973, the Veteran was afforded a separation examination and was evaluated as clinically normal.  The Veteran re-entered active duty service in January 1980.  In January 1980, the Veteran complained of a sore right shoulder that had been bothering him for four days.  An examiner diagnosed muscle strain.  In February 1980, the Veteran was given pain medication for his right shoulder.  In December 1981, the Veteran was afforded a separation examination and was evaluated as clinically normal.  The Veteran specifically checked "no" in response to the questions of whether he had arthritis; bone, joint or other deformity; or a painful or "trick" shoulder or elbow.  The Veteran re-entered active duty service in January 1982.  In September 1982, the Veteran reported a sore wrist.  The Veteran was afforded an x-ray examination, which revealed an avulsion from the base of the proximal phalanx of the right index finger, and an old avulsion non-united of the ulnar styloid.  The Veteran was discharged from active duty service for bilateral early degenerative arthritis of the knees.

Post-service medical treatment records reflect additional complaints of musculoskeletal pain.  In July 2002, the Veteran complained of tingling in his left foot and left hand.  The examiner noted possible paresthesia of the left hand and left foot.  In November 2004, the Veteran complained of generalized arthritis, and the examiner prescribed medication.  In January 2006, the Veteran was afforded x-ray examinations of the shoulders and hands to rule out arthritis.  The x-rays of the right and left shoulder were normal.  The x-rays of the left hand were normal.  The x-ray of the right hand revealed a bony fragment at the ulnar standard, which represented an unfused secondary ossification center, which was noted to be either a normal variant, or from an old injury.  In May 2006, the Veteran complained of arthritis, and the examiner noted arthritis of the knees and hands and started the Veteran on medication.  In September 2006, the Veteran complained of chronic pain to his hands and was diagnosed with arthritis.  In August 2007, the Veteran complained of shoulder pain.  The Veteran was afforded an x-ray examination, which was normal and revealed no significant changes since the January 2006 x-ray examination.

In January 2005, the Veteran was afforded a VA hands, thumbs, and fingers examination.  The Veteran noted that years ago he might have had a fracture of the right hand.  The examiner noted that x-rays of both hands were normal.  The x-ray of the right wrist revealed at distal ulnar styloid with slight irregularity, which the examiner noted could have been either a congenital or development problem, or an old fracture.  The examiner diagnosed chronic wrist strain.

In January 2005, the Veteran was also afforded a VA joints examination.  The Veteran reported that he had shoulder pain since separation from active service, and that he had required at least three injections in the right shoulder.  He also reported pain in the hands with the swelling of the fingers.  X-rays of the shoulders were normal, with no evidence of loose bodies or arthritis.  The examiner noted that there was no ongoing evidence of any chronic osteoarthritis or inflammatory arthritis of the shoulders, and diagnosed chronic left shoulder strain.

In November 2005, the Veteran was afforded an Agent Orange Examination.  Of importance to the issues on appeal, the Veteran complained of generalized arthritis, and numbness in his hands and feet.  The examiner diagnosed arthritis, generalized.

In December 2011, the Veteran was afforded a VA examination of his shoulders and arms; wrists; and hands and fingers.  The Veteran reported that his bilateral shoulder pain began in the early 1970s and his shoulders had become stiffer and increasingly painful.  He reported that he started experiencing bilateral wrist pain in the early 1980s when he was boxing with shipmates, and he thought he broke a bone in his right wrist.  He reported that the pain had worsened over the years.  The Veteran also reported that he developed cramping in his fingers of both hands during service, and that over the past several years the cramping has gotten worse and was associated with pain.  Upon physical examination, the examiner noted less movement than normal, weakened movement, and pain on movement in both shoulders.  The examiner also noted less movement than normal and pain on movement in both wrists; and weakened movement, excess fatigability, and incoordination of the all fingers.  Imaging studies revealed no degenerative or traumatic arthritis in either shoulder, wrist, or hand.  However, the examiner noted an unfused ulnar styloid in the right hand.

The examiner opined that the Veteran's claimed shoulder, wrist, hand, and finger conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness.  The examiner noted that for each claimed condition there was little documentation that the condition has been an ongoing problem, and there was no specific in-service causative event documented.  The examiner noted that the Veteran's records report vague generalized arthritis, but no specific treatment or consultations.  The examiner also noted that for each claimed condition, x-ray studies for damage or the presence of arthritis were negative.

Based on the evidence of record, the Board finds that service connection for a right shoulder disability, left shoulder disability, and left wrist/hand/finger disability is not warranted.

The Board finds that there is no competent and credible evidence of record that would provide a nexus opinion between the Veteran's complaints during active duty service of finger and wrist pain, and his diagnoses of muscle strain of the right shoulder, and his current disabilities.  While the Veteran might sincerely believe that his current disabilities are related to the incidents of shoulder, wrist, and finger pain that occurred in active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current disabilities are related to his active service falls outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Board notes that the Veteran has articulated that he has had chronic pain in his shoulders and hands since separation from active duty service.  The Board emphasizes that pain itself, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).  The 2012 VA examiner noted that the Veteran's currently diagnosed disabilities are less likely than not incurred in or caused by active duty service.  Without anything more, there is no competent and credible evidence of record that could serve as nexus evidence.

In this regard, the Board notes that there is no evidence of record of ongoing conditions.  Upon discharge from the Veteran's various periods of active duty service, there is no indication that the Veteran suffered from continual pain of the shoulders, wrists, hands, or fingers.  The Veteran was diagnosed with right shoulder muscle strain in August 1970 and January 1980.  According to separation examinations, there was no indication of a muscle strain in either January 1973 or December 1981.  As such, it appears that any injuries during the earlier periods of service appear to have been acute and transitory and resolved upon discharge.

During the Veteran's third period of active duty service, from January 1982 to July 1986, the STRs do not record any complaints, treatment or diagnosis related to the shoulders or left hand.  The Veteran left active duty service for the final time in 1986 and there are no post-service medical treatment records regarding musculoskeletal pain until 2002.  If he had been experiencing constant pain of the shoulders, left wrist, hands and fingers, it would have seemed logical to seek treatment or report it at some point.  Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011).  Indeed, the Veteran's STRs for the second period, while the veteran was seen repeatedly for a number of different medical problems, including orthopedic problems, none were related to the shoulders or left hand, wrist or fingers.  This lack of evidence casts doubt on the Veteran's assertions that the current diagnoses are related to alleged symptoms in service.  In any case, such allegations do not outweigh the persuasive medical opinions of record stating there is no etiological relationship.  In sum, there is no evidence of a link between the Veteran's complaints of pain in service and diagnoses of muscle strain of the right shoulder, and his currently diagnosed disabilities.  Accordingly, service connection for a right shoulder disability, left shoulder disability, and left wrist/hand/finger disability is not warranted.

The Board finds that the Veteran has a current right hand disability.  As noted above, the December 2011 VA examination noted an unfused ulnar styloid of the right hand.  This finding was also made in January 2005 and January 2006 x-rays.  Further, service treatment records noted an avulsion from the base of the proximal phalanx of the right index finger, and an old avulsion non-united of the ulnar styloid.  The December 2011 VA examiner did not opine as to whether such a condition could cause the Veteran's symptoms of pain, and whether the condition is as likely as not related to the in-service incidents of avulsions of the right hand.  Giving the Veteran the full benefit of the doubt, the Board finds that service connection for residuals of a fracture of the right hand is warranted.  38 U.S.C.A. � 1507 (West 2002); 38 C.F.R. � 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

ORDER

Service connection for right shoulder disability is denied.

Service connection for left shoulder disability is denied.

Service connection for residuals of a fracture of the right hand is granted.

Service connection for left wrist/hand/finger disability is denied.

____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: C CRAWFORD

disposition: granted

condition: back

text:
Citation Nr: 1406000
Decision Date: 02/10/14    Archive Date: 02/24/14

DOCKET NO.  06-06 602	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to a separate rating for neurological impairment associated with service-connected low back strain.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

D. Johnson, Counsel

INTRODUCTION

The Veteran had active service from October 1992 to May 1999.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In that decision, the RO denied an increased rating for a service-connected low back strain.

In February 2009, the Veteran testified before the undersigned at a personal hearing at the RO.  A transcript of the hearing is of record.

In June 2009 and January 2011, the Board remanded the appeal for additional development of the record.

In August 2011, the RO granted an increased rating for the back disability.

In December 2011, the Board adjudicated the orthopedic aspect of the claim.  The issue of whether a separate rating was warranted for neurological impairment associated with the service-connected low back strain was remanded for further development, which has since been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Additional evidence in the form of statements from the Veteran, and a statement from a friend, were added to the claims file following the last supplemental statement of the case.  As this evidence is essentially duplicative of evidence already considered by the RO, a remand is unnecessary.  38 C.F.R. � 20.1304.

FINDINGS OF FACT

1.  Resolving all doubt in the Veteran's favor, radiculopathy of the bilateral lower extremities is associated with the service-connected low back strain.

2.  There is no bowel or bladder dysfunction that has been associated with the service-connected low back strain.

CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for a separate rating for radiculopathy of the bilateral lower extremities have been met.  38 U.S.C.A. �� 1155, 5107(b) (West 2002); 38 C.F.R. �� 4.7, 4.14, 4.71a, Diagnostic Code (DC) 5237; 38 C.F.R. � 4.124a, DC 8520 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. � 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the Veteran pre-adjudication notice by letter dated October 2004.  The letter notified the Veteran of what evidence was necessary to establish entitlement to an increased rating for the service-connected back disability, generally.  The notice letter explained what evidence VA would obtain on the Veteran's behalf, and what evidence the Veteran was to provide.  Although that notice letter did not provide specific notice as to how initial disability ratings or effective dates are assigned pursuant to the holding in Dingess, a subsequent letter was sent to the Veteran in March 2006 that fully addressed all necessary notice requirements, including how VA assigns effective dates and initial ratings for any grant of service connection.  In a June 2008 letter, the Veteran was specifically advised of the specific criteria pertinent to rating back disabilities.  The claim was subsequently readjudicated in a supplemental statement of the case, issued most recently in July 2013.

During the course of the appeal, the RO has provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate the claim for an increased rating.  The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of the Veteran's back disability.  The medical examination reports are adequate as they pertain to rating the Veteran's back disability on the basis of neurologic impairment.  The examination reports are based on a review of the history and clinical evaluations.  The information provided is sufficient to allow the Board to render an informed determination.

Additionally, the Veteran took advantage of her opportunity to present oral testimony in support of her claim at a personal hearing before the undersigned in February 2009.  All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.

As previously noted, the claim was remanded in June 2009, January 2011, and December 2011.  There has been substantial compliance with the remand instructions and the Veteran is not prejudiced by a decision on the claim at this time.

Analysis

The Veteran seeks a separate rating for neurologic impairment associated with her service-connected low back strain.

Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.

The Veteran's service-connected low back strain is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. � 4.71a.  According to Note (1) under the General Rating Formula for Disease and Injuries of the Spine at 38 C.F.R. � 4.71, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment should be evaluated separately under an appropriate diagnostic code.

Diagnostic Code 8520 applies where there is incomplete or complete paralysis of the sciatic nerve.  See 38 C.F.R. � 4.124a, DC 8520.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. �� 3.102, 4.3.

At a VA examination in August 2005, the Veteran reported numbness in the lateral and interior aspects of both thighs.  She denied urinary or fecal incontinency, but did report severe bladder urgency.  On examination, there was no muscle atrophy.  Motor skills were normal and foot drop was negative bilaterally.  There was good pinprick sensation and good strength to both lower extremities.  Deep tendon reflexes were 1+ and equal at both lower extremities.  Straight leg raise bilaterally at about 30 degrees produced low back pain.  The diagnosis was annular tear with paracentral disc disease at L5-S1 nerve root.  A magnetic resonance imaging (MRI) scan scheduled in conjunction with the August 2005 examination revealed an annular tear with a small right paracentral disc protrusion at L5-S1 touching the S1 nerve root.  No spinal stenosis was noted.

In February 2009, the Veteran testified before the undersigned Veterans Law Judge.  At her hearing, the Veteran submitted a copy of a private examination report from January 2007.  This report noted a diagnosis of UTI (urinary tract infection) with back pain.

At a VA examination in January 2010, the Veteran denied radiation of pain down her legs.  On examination, she displayed absent reflexes in the knees and 1+ reflex in the ankles.  The impression was L5-S1 herniated nucleus pulposus with L5-S1 nerve root compression.

In an August 2010 statement, the Veteran reported that she could no longer walk 100 feet without her feet getting numb.

At a VA examination in February 2011, the Veteran reported that her back pain radiated into both lower extremities to the posterior aspect of the lower thighs.  She reported that she could only walk about a block and then had to stop and rest.  On examination, the Veteran had a normal gait.  She had 1+ reflex in the knees and ankles.  She had weak extensor hallucis muscle strength bilaterally.  On pinprick, she had decreased sensation in the right medial upper leg.  The clinical impression was L5-S1 disc with mild S1 nerve root compression.

At a VA examination in January 2012, the Veteran reported occasional radiation of back pain into her right lower extremity into the calf.  The examiner noted that while the 2005 MRI showed disc herniation at L5-S1 level touching the S1 nerve root, the more recent MRI showed no disc herniation at that level and no nerve root tension at present.  The examiner explained that this likely indicated reabsorption of the herniated disc material as the Veteran currently had no nerve root tension signs.

Objectively, muscle strength tests and deep tendon reflexes were normal bilaterally.  The sensory examination revealed absent sensation to light touch in the right lower leg/ankle (L4/L5/S1) only.  Straight leg raise was negative bilaterally.  The diagnosis was myofascial lumbar syndrome with prior HNP, L5-S1 level that has been absorbed.  The examiner indicated that there was involvement of L4/L5/S1/S2/S3 nerve root (sciatica) on the right, which was of mild severity.  There was no involvement of the left lower extremity.  He also determined that there was no bowel or bladder impairment associated with the back disability.

In a February 2012 examination report, the same VA examiner determined that the Veteran's current disc problem was unrelated to the low back strain that was incurred in service and he explained the rationale for this opinion.

On VA examination in November 2012, muscle strength testing and deep tendon reflexes were normal bilaterally.  Sensation to light touch was also normal bilaterally.  Straight leg raise was negative on the right, but positive on the left.  The examiner noted that the Veteran had radicular pain or other signs/symptoms that were due to radiculopathy.  He explained that there was a subjective complaint of left leg weakness without pain.  The nerve roots involved were identified as "other" because the examiner could not localize the nerve root with the normal examination.  The severity of the radiculopathy was determined to be mild.  The examiner further noted that there were no other current neurologic abnormalities related to the thoracolumbar spine condition.  He also indicated that the February 2011 MRI showed no evidence of nerve root entrapment.  The diagnosis on the report was lumbosacral strain.

An electromyography (EMG) study was conducted in February 2013 to further evaluate the findings of record.  The EMG was reportedly normal with no electrodiagnostic evidence of a lumbosacral radiculopathy on the complete EMG screen of the left.  There also was no electrodiagnostic evidence of a sciatic or peroneal mononeuropathy on bilateral lower extremity testing.

Resolving all doubt in the Veteran's favor, a separate rating for neurologic impairment associated with her service-connected low back strain is warranted.  Although the Veteran did not demonstrate bilateral sciatic or peroneal mononeuropathy of either lower extremity on the February 2013 EMG study, diagnoses of right lower extremity radiculopathy and left lower extremity radiculopathy were rendered at the respective VA examinations in January 2012 and November 2012 during the course of the appeal.  See McLain v. Nicholson, 21 Vet. App. 319 (2007).

The Board is mindful that the February 2012 VA examiner determined that the Veteran's current "disc problem" was unrelated to the low back strain that was incurred in service.  He did not, however, specifically associate the diagnoses of right and left leg radiculopathy with the Veteran's "disc problem."  In addition, he did not specifically rule out an association between the diagnoses of right and left leg radiculopathy and the service-connected low back strain.

Because the Veteran's reports of numbness, paresthesias, radicular pain, and weakness in her lower extremities are credible, and because of the objective findings noted on physical examinations, all doubt is resolved in the Veteran's favor.  Separate ratings for radiculopathy of the right and left lower extremities are warranted.

The Veteran is not, however, entitled to a separate rating for any bowel or bladder impairment as the evidence does not reflect that her complaints of bladder dysfunction are etiologically associated with her service-connected low back strain.

At a genitourinary examination in January 2012, a VA examiner provided a diagnosis of urinary incontinence based on the Veteran's history and examination findings.  The examiner determined that the Veteran's voiding dysfunction was of unknown etiology.  In an addendum received that month, the examiner indicated that she had since reviewed the claim file.  She opined that the Veteran's bladder dysfunction was not associated with the service-connected low back strain and, provided a thorough clinical rationale for her opinion.

While the Veteran is competent to describe her bladder symptoms of incontinence and urgency, determining whether any bladder impairment is caused by a condition of the lumbosacral spine is a complex question that requires medical expertise.  The Veteran is not shown to be qualified through specialized education, training, or experience to provide medical opinions on the etiology of her bladder condition and any possible association to her service-connected orthopedic condition.  Therefore, her lay contentions are not competent evidence on the material issue of causal nexus.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The competent evidence with respect to causal nexus in this case consists of the January 2012 VA examiner's findings.  This examiner determined that the Veteran's bladder dysfunction is not associated with her service-connected low back strain.  The VA examiner is qualified through education, training, and experience to diagnose and offer a medical opinion regarding the Veteran's bladder disorder.  The examiner reviewed the Veteran's entire service file and her opinion was clear, unequivocal, and supported by a well-reasoned rationale.  Therefore, the opinion is persuasive evidence with respect to the etiology of the Veteran's bladder dysfunction.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).

There is no medical opinion to the contrary, and this examiner's finding is consistent with the findings at the VA spine examinations in January and November 2012.

Accordingly, a separate evaluation for bladder impairment claimed to be associated with the service-connected low back strain, is not warranted.  The preponderance of the evidence is against the claim in this regard, and the benefit-of-the doubt standard of proof does not apply.  38 U.S.C.A. � 5107(b).

ORDER

Resolving all doubt in the Veteran's favor, a separate rating for radiculopathy of the right and left lower extremities associated with the service-connected low back strain is granted.

____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: RONALD W SCHOLZ

disposition: denied

text:
Citation Nr: 1407000
Decision Date: 02/19/14    Archive Date: 03/04/14

DOCKET NO.  10-42 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Whether new and material evidence has been submitted to reopen the claim of service connection for a low back disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1968 to February 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

FINDINGS OF FACT

1.  In an August 2002 rating decision, the RO denied the claim of service connection for a low back disability because the evidence failed to show that the current low back disability was related to an event or injury in service.  The Veteran was notified of the decision and of his appellate rights.  He did not appeal.  The decision became final.

2.  The new evidence since the RO's August 2002 decision does not relate to an unestablished fact necessary to substantiate the Veteran's claim.

CONCLUSION OF LAW

The criteria for reopening a claim of service connection for a low back disability have not been met.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. � 3.156 (2013).

Notice and Assistance

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

A January 2010 letter satisfied the duty to notify provisions.  This letter notified the Veteran of regulations pertinent to reopening a claim of service connation.  The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case.

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding records pertinent to the appeal.  The Veteran's available Social Security Administration disability records were obtained in September 2009.

A VA examination was conducted in September 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence

The Veteran seeks to reopen a claim of service connection for a low back disability.

In November 2001, the RO denied the initial claim of service connection because the evidence did not show that the Veteran's current low back disability is related to service; specifically, to an acute back problem noted during active military service.

In June 2002, the Veteran submitted new evidence, lay statements and private medical records in support of his claim.

In August 2002, the RO denied the claim of service connection because the evidence still failed to show that the current low back disability was related to an event or injury in service.  The Veteran was notified of the decision and of his appellate rights.  He did not appeal.  The decision became final.  38 U.S.C.A. � 7105.

In September 2009, the RO received the Veteran's current application to reopen the claim of service connection for a low back disability.

The reopening of a claim of service connection that has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim.  38 C.F.R. � 3.156.

In March 2010, the RO denied the application to reopen on the basis that new and material evidence had not been submitted since the August 2002 rating decision.

New evidence means existing evidence not previously submitted to agency decision makers.  Id.

Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.

The new evidence presented since August 2002 includes private medical records which show treatment for a serious work-related back injury from January 2002 to January 2004; a Social Security Administration award letter which shows that the Veteran has been disabled due to his back since June 2003; and a September 2010 VA examination report.

The September 2010 VA examiner opined that the Veteran's current back disability is not caused by or a result of his military service.  The rationale was that there was no specific injury in service and the Veteran was able to work in labor after service.  The examiner also opined that the current low back disability is most likely due to a work related injury.

This new evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, evidence that the current low back disability is related to service, and as the lack of such evidence was the basis for the previous denial of the claim, this evidence is new, but not material under 38 C.F.R. � 3.156.

Reopening the claim of service connection for a low back disability is not warranted.

ORDER

As new and material evidence has not been presented, the claim of service connection for a low back disability is not reopened; the appeal is denied.

____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: GEORGE E GUIDO JR

disposition: remanded

text: For these reasons, reexaminations under 38 C.F.R. § 3.327 are warranted. Accordingly, the claims are REMANDED for the following action:

text: The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).

text:
Citation Nr: 1408000
Decision Date: 02/25/14    Archive Date: 03/07/14

DOCKET NO.  12-04 812A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUES

1.  Entitlement to a disability rating higher than 30 percent for migraine headaches.

2.  Entitlement to a disability rating higher than 20 percent for cervical degenerative disc disease.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel

INTRODUCTION

The Veteran served on active duty from June 1987 to June 2004.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2010 of a Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for migraine headaches to 30 percent and a assigned a 10 percent rating for the cervical spine disability, effective the date that the temporary total rating for surgical convalescence ended.  While on an appeal in a rating decision in March 2012, the RO increased the rating to 20 percent with the same effective date.

In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

In March 2013, the Veteran submitted a VA Disability Benefits Questionnaire completed by a private psychologist, in which the psychologist states that the Veteran has developed a mood disorder with depression due to migraine and cervical spine pain.  As the Veteran is not service-connected for a psychiatric disorder, the matter is REFERRED to the RO for appropriate action.

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.

REMAND

On the claim for increase for migraine, the record suggests a material change in the disability since the Veteran was last examined by VA in March 2010.

On the claim for increase for the disability of the cervical spine, in March 2013, the Veteran testified that the disability had increased in severity since he was last examined by VA in July 2010.

For these reasons, reexaminations under 38 C.F.R. � 3.327 are warranted. Accordingly, the claims are REMANDED for the following action:

1.  Obtain VA records since April 2010.

2.  Afford the Veteran a VA examination to determine the current severity of the migraine headaches.

The examiner is asked to state whether the headaches are productive of very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Veteran's file must be available to the examiner for review.

3.  Afford the Veteran a VA examination to determine the current severity of the cervical spine disability.

The examiner is asked to describe:

i).  Range of motion in degrees of flexion, extension, rotation, and lateral flexion;

Any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; and,

Unfavorable ankylosis, if present;

ii).  Any objective neurological abnormalities; and,

iii).  Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes.

The Veteran's file must be available to the examiner for review.

4.  After the development is completed, adjudicate the claims for increase.  If any benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

_________________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).


judge_norm: HARVEY P ROBERTS

text:
Citation Nr: 1409000
Decision Date: 03/04/14    Archive Date: 03/12/14

DOCKET NO.  11-24 755	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUE

Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for the cause of the Veteran's death.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Haddock, Counsel

INTRODUCTION

The Veteran was in missing status from May 1944 to January 1945 and had service with the recognized guerillas from January 1945 to February 1946 and with the New Philippine Scouts from August 1946 to May 1949.  The Veteran died in June 2007.  The appellant seeks surviving spouse benefits.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Republic of the Philippines.

The appellant testified at a hearing before the undersigned Veterans Law Judge at the RO in January 2013.  A transcript of that hearing is of record.

FINDINGS OF FACT

1.  An unappealed October 2009 Board decision denied service connection for the cause of the Veteran's death.

2.  The evidence associated with the claims file subsequent to the October 2009 Board decision is cumulative or redundant of the evidence previously of record and is not sufficient to raise a reasonable possibility of substantiating the claim of entitlement to service connection for the cause of the Veteran's death.

CONCLUSION OF LAW

New and material evidence has not been received to reopen a claim of entitlement to service connection for the cause of the Veteran's death.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim.  VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim.  38 U.S.C.A. �� 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. � 3.159 (2013).  As part of the notice, VA must specifically inform the claimant and any representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.

Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits.  38 U.S.C.A. � 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004).  The timing requirement applies equally to the effective date element of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  When providing the notice in a claim to reopen a previously denied claim, it is necessary for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the new and material evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

The record shows that the appellant was mailed a letter in August 2010 advising her of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  The August 2010 letter also provided the appellant with appropriate notice with respect to the reason for the prior final denial and appropriate notice with respect to the effective date element of her claim.  The Board acknowledges that the appellant was not provided notice with respect to the disability rating element of her claim.  However, as the underlying claim in this case is entitlement to service connection for the cause of the Veteran's death, if granted, no disability rating will be assigned.  Therefore, the failure to provide rating notice is not prejudicial and there is no bar to proceeding with a final decision.

The Board also finds the appellant has been provided adequate assistance in response to her claim.  The Veteran's service medical records are of record.  Private treatment notes have been obtained.  The appellant has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim.  The Board is also unaware of any outstanding evidence.  Further, the Board acknowledges that a VA medical opinion has not been obtained in this case.  However, VA has no obligation to obtain such an opinion if new and material evidence has not been presented.  38 C.F.R. � 3.159 (c)(4) (2013).

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. �� 7104(b), 7105(c) (West 2002).  The exception to this rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. � 5108 (West 2002).

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a) (2013).

The requirement that new evidence raise a reasonable possibility of substantiating the claim does not require new and material evidence as to each previously unproven element of a claim and is a low threshold.  38 C.F.R. � 3.156(a) (2013); Shade v. Shinseki, 24 Vet. App. 110 (2010).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The appellant filed a claim of entitlement to service connection for the cause of the Veteran's death in June 2007.  In a September 2007 rating decision, the appellant was denied entitlement to service connection for the cause of the Veteran's death based on a finding that there was no evidence that the Veteran's cause of death was incurred in active service or was related to his active service.  The appellant appealed that decision.  An October 2009 Board decision denied service connection for the cause of the Veteran's death based on a finding that there was no competent evidence of a nexus between the Veteran's cause of death and his active service.  The appellant did not appeal that decision.

The pertinent evidence of record at the time of the October 2009 Board decision included the Veteran's service medical records, which show that the Veteran was treated for acute pneumonia and acute bronchitis on several occasions during active service; the Veteran's death certificate, which listed the Veteran's immediate cause of death as pneumonia; statements from the Veteran (submitted in conjunction with claims filed prior to his death) and the appellant, in which they report that the Veteran's respiratory disabilities first manifested while he was in active service; post-service medical records showing that the Veteran received current treatment for chronic obstructive pulmonary disease (COPD) and pulmonary tuberculosis; and an April 2007 letter from the Veterans Memorial Medical Clinic, in which it was noted that the Veteran had been admitted to the hospital for treatment of a cerebral concussion secondary to a motor vehicle accident, chronic liver disease secondary to alcoholic liver disease versus post-hepatic, and acute respiratory failure secondary to COPD and chronic bronchitis.

The pertinent evidence that has been received since the October 2009 Board decision includes additional statements from the appellant, to include her January 2013 Board hearing testimony, in which she reported that the Veteran's respiratory problems first manifested during active service; additional copies of the Veteran's service medical records showing treatment for both acute pneumonia and acute bronchitis during the Veteran's active service; and additional copies of the Veteran's death certificate, showing his immediate cause of death listed as pneumonia.

The Board finds that the evidence submitted since the October 2009 Board decision is not new and material.  Service connection for the cause of the Veteran's death was denied previously based on a finding that there was no indication that the Veteran's cause of death was incurred in or otherwise related to his active service.  The appellant has not provided any new and material evidence indicating that the Veteran's cause of death was related to his active service.  The copies of previously reviewed evidence are cumulative and redundant and do not constitute new evidence.  The appellant's contentions are also redundant of those previously considered in the final denial.  There is no new competent evidence of record that links the Veteran's cause of death to service in any way.

Therefore, the evidence added to the record is not sufficient to raise a reasonable possibility of substantiating the claim.  Accordingly, reopening of the claim of entitlement to service connection for the cause of the Veteran's death is not warranted.

ORDER

New and material evidence has not been presented and reopening of the claim of entitlement to service connection for the cause of the Veteran's death is denied.

____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: SONNET GORHAM

condition: fibromyalgia

text:
Citation Nr: 1410000
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  08-25 673	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana

THE ISSUES

1.  Entitlement to service connection for a cervical spine disability, to include as secondary to service-connected lumbar spine degenerative disc disease (DDD).

2.  Entitlement to service connection for fibromyalgia, to include as secondary to service-connected lumbar spine DDD.

3.  Entitlement to a disability rating in excess of 10 percent for lumbar spine DDD.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel

INTRODUCTION

The Veteran served on active duty from January 1993 to October 1996 and from June 1998 to July 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The RO in Fort Harrison, Montana, certified the appeal to the Board.  The Veteran testified before the undersigned in August 2009.

The issues of entitlement to an increased rating for lumbar spine DDD and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran's cervical spine disability is the result of an in-service lifting injury.

2.  The Veteran's fibromyalgia is the result of an in-service lifting injury.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a cervical spine disability are met.
38 U.S.C.A. �� 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.303 (2013).

2.  The criteria for service connection for fibromyalgia are met.  38 U.S.C.A. �� 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that her cervical spine disability and fibromyalgia are a result of a back injury she sustained in October 2000.  She testified that she injured her low back lifting a foot locker and pushed herself to return to duty before she had fully healed.  See Board Hearing Transcript at 16-17; written statement submitted in February 2009 and August 2009.  Shortly thereafter, she said she noticed having problems turning her head from side to side and that her helmet felt heavy on her neck.  See id. at 21.  She testified that she continued to have problems but did not want to tell anyone and jeopardize her flight status.  Id. at 22.  She also stated that sitting for long periods of time during flights aggravated her back and neck condition.  Id. at 23.  Regarding fibromyalgia, she testified that her treating physician attributed the diagnosis to her back injury.  Id. at 25.

Alternatively, the Veteran argues that her cervical spine condition and fibromyalgia are secondary to her service connected lumbar spine disability.  See October 2007 written statement from her representative.  However, as service connection on a direct basis is warranted, this theory of entitlement need not be explored.

Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection requires competent evidence showing:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995).

Here, the Veteran has met the first and second elements of service connection on a direct basis.  The evidence reflects that she has diagnoses of a current cervical spine disability and fibromyalgia.  See, e.g., a May 2007 MRI report showing minimal cervical spondylosis; see also an April 2007 record of the San Diego Naval Medical Center diagnosing fibromyalgia.  There is also evidence of in-service back injury, as service treatment records reflect that the Veteran complained of low back pain after lifting a heavy object in October 2000.  At issue is the third element - whether there is a relationship between her current disabilities and service.

There are a number of opinions in the Veteran's favor.  Specifically, in June 2006 and May 2007 letters, A.J.H., a private chiropractor, relates the Veteran's cervical spine disability to her military service.  In a January 2008 letter, A.J.H. opined that it is "as least as likely as not that the trauma of [the Veteran's] back injuries while on active duty triggered her neck injuries.  When one part of the spine is injures [sic], the entire spine is affected by compensating, which [the Veteran's] neck did."  In a letter received in January 2008, Dr. D.S.U. indicated that he reviewed the Veteran's records after treating her at San Diego Internal Medicine.  He opined that "it is as least as likely as not that trauma of her back injuries while on active duty triggered both her neck injuries and Fibromyalgia condition."  The physician explained that "[w]hen one part of the spine is injured, the entire spine is affected by compensating, which [the Veteran's] neck did."  In a February 2008 letter, Dr. S.O. indicated that it was "entirely possible that the trauma of [the Veteran's] back injuries while on active duty triggered her fibromyalgia."  These opinions are supported by lay statements from the Veteran's mother (F.F.) and husband (J.C.) submitted in October 2006, that indicate that she had increasing problems since military service with her back, knees, hips, neck, ankles, feet, depression, and melasma.

Against the claim is the opinion of the July 2008 VA examiner, who opined that the Veteran's fibromyalgia stemmed from her uterine and bladder infection that she had after giving birth in November 2006 and was not caused by the low back injury she had in service.  Regarding the cervical spine disability, the examiner opined that the condition was not related to the back injury the Veteran had in service.  The examiner noted that the Veteran's first documented complaint of neck pain was in May 2006 - two years after she separated from service and that her service treatment records indicated that she had recovered well from the low back injury.

The Board finds that the medical nexus evidence is at least in equipoise, and, as such, the benefit of the doubt is resolved in the Veteran's favor.

ORDER

Service connection for a cervical spine disability is granted.

Service connection for fibromyalgia is granted.

REMAND

A remand is necessary to ascertain the current nature and severity of the Veteran's service-connected lumbar spine DDD.  All outstanding treatment records should also be obtained.  Moreover, the Veteran's SSA records reflect her assertions that she is unemployable, at least in part, due to her service-connected lumbar spine DDD.  As such, a claim of entitlement to a TDIU is raised by the record and considered part of the increased rating claim.  This matter warrants additional development and adjudication on appeal and is inextricably intertwined with the increased rating claim.

Accordingly, the case is REMANDED for the following actions:

1.  Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability, and ask her to complete the form in its entirety.

2.  Ask the Veteran to identify the provider(s) of any additional treatment or evaluation she has received for her low back disability, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation.  Obtain complete records of all such treatment and evaluation from all sources identified, specifically including any records of VA treatment the Veteran has received from the VA Montana Healthcare System since February 2009.

All requests and responses must be clearly documented in the Veteran's claims file and the Veteran must be notified of any inability to obtain these records, in accordance with 38 C.F.R. � 3.159(e).

3.  Then, schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected lumbar spine DDD.  The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's electronic folder) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.

In accordance with the latest worksheet for rating the spine, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of the lumbar spine DDD.  The examiner should specifically comment on the impact of the Veteran's low back symptomatology on her ability to secure and follow substantially gainful employment.

The examiner must provide a complete rationale for all opinions and conclusions reached, supported by specific references to the pertinent evidence, including the Veteran's lay assertions.  If the examiner is unable to provide an opinion without resorting to mere speculation, he or she must provide a detailed explanation as to why such an opinion cannot be provided.

4.  Then, and after undertaking any additional development deemed necessary, readjudicate the claims, to include entitlement to a TDIU.  If any benefit sought on appeal is denied, provide the Veteran and her representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

______________________________________________
Sonnet Gorham
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JOHN J CROWLEY

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).

text:
Citation Nr: 1411000
Decision Date: 03/14/14    Archive Date: 03/20/14

DOCKET NO.  08-37 958	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Whether the Veteran has basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code.

ATTORNEY FOR THE BOARD

J. Nobrega, Associate Counsel

INTRODUCTION

The Veteran had active military service from August 2000 to October 2002.

This appeal comes to the Board of Veterans' Appeals (Board) from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In May 2013 and November 2013 decisions, the Board remanded this issue for additional development.  As will be discussed below, the Board finds the remand directive was not completed and additional remand is required.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran in this case is seeking Chapter 30 educational assistance.  The Veteran acknowledges that she did not complete her term of enlistment, but believes that her honorable discharge for parenthood should qualify as a "hardship discharge" so as to bring her under the exception to length of service provided in 38 C.F.R. � 21.7042(a)(5)(iii).

In the previous decision the Board noted that according to Army Regulations, individuals who are separated with a separation authority of 635-200 PARA 6-3A or B, such as the Veteran, may be separated due to hardship or may be separated due to parenthood, not due to hardship.

The Board was unclear what the separation code "KDG" represented and asked the RO/AMC to contact the Department of Defense upon remand to determine whether the separation code "KDG" indicates a hardship discharge.

The claims file does not include any indication the RO/AMC contacted the Department of Defense to determine whether separation code "KDG" indicates a hardship discharge.

Because the remand directive was not completed additional remand is required.  Stegall v. West, 11 Vet. App. 268 (1998).  (Holding a previous remand confers on the veteran, as a matter of law, the right to compliance with the remand orders).

The Board apologizes to the Veteran for the delay in this case.

Accordingly, the case is REMANDED again for the following action:

1.  Contact the Department of Defense to determine whether the separation code "KDG" indicates a hardship discharge.

2.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran with a supplemental statement of the case and allow an appropriate time for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).


judge_norm: ERIC S LEBOFF

text:
Citation Nr: 1412000
Decision Date: 03/21/14    Archive Date: 04/02/14

DOCKET NO.  10-35 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL

Appellant and his wife, G.H.

ATTORNEY FOR THE BOARD

D.J. Drucker, Counsel

INTRODUCTION

The Veteran had active military service from March 1953 to March 1956.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In October 2012, the Veteran, sitting at the RO, testified during a hearing conducted via videoconference with the undersigned Veterans Law Judge sitting at the Board's main office in Washington, D.C.

In a November 2012 decision, the Board reopened the Veteran's previously denied claim of service connection for bilateral hearing loss.  At that time, and in April 2013, the Board remanded the reopened claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development.

Then, in January 2014, the Board requested a medical opinion, pursuant to 38 U.S.C.A. � 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claim of entitlement to service connection for bilateral hearing loss.  See 38 U.S.C.A. � 7109(a) (West 2002) and 38 C.F.R. � 20.901 (2013).  See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995).  A VHA medical opinion was rendered in March 2014.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2013).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

Bilateral hearing loss was incurred during the Veteran's active military service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �� 3.303, 3.385 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013), VA has certain obligations to notify and assist the appellant.  Given that this decision grants the claim on the appeal for service connection for bilateral hearing loss, an exhaustive analysis of VA's attempt to comply with these statutes is not in order.

Under 38 U.S.C.A. �� 1110 and 1131; 38 C.F.R. � 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. � 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. � 3.309(a)).

Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.307, 3.309 (2013).

To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990

Hearing loss disability is defined by regulation.  For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385.

In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (court) stated that 38 C.F.R. � 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.  Id. at 159.  The court explained that, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service.  Id. at 160.  The court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss.  Id. at 1.

The Veteran's service records show that his military occupation was as a track vehicle mechanic.  He claims that he was exposed to acoustic trauma in service during his service in the Republic of Korea during the Korean Conflict.  The Board finds that the circumstances of the Veteran's service are consistent with his contentions of acoustic trauma and thus noise exposure is conceded here.

The Veteran's service treatment records are unavailable and are presumed destroyed in a fire.

The post service medical evidence includes an August 12, 1985 private ear, nose, and throat (ENT) clinic record from West Virginia University Hospital noting a diagnosis of bilateral sensorineural hearing loss.

Private treatment records, dated from September to November 1985, include a September 3, 1985 medical history indicating a long history of slow, progressive hearing loss, that the Veteran noticed for some time and that worsened in the last several years.  It was noted that he worked on the railroad for 29 years and was exposed to very loud noise commonly.  Prior railroad rules required that there not be ear protection at work because of safety concerns.  It was further noted that the Veteran was advised by a railroad examiner that he was going to lose his hearing and ought to quit but did not agree and sought evaluation.

A November 1, 1985 private ENT record from Dr. B. indicates that the Veteran was a 51-year old brakeman with several years on the railroad.  He had progressive hearing trouble over the past two or three years.  The clinical impression was bilateral severe to profound high frequency sensorineural hearing loss that was related to noise.  The Veteran was advised that, if he was unable to wear ear protection, he should not work in a noisy environment.

The Veteran retired from the railroad on disability, effective September 29, 1985, according to a January 1986 Railroad Retirement Notice.

In December 2009, the Veteran underwent VA audiology examination and gave a history of noise exposure from military cannons and vehicles, occupational work as a railroad employee for thirty years, and recreational gunfire and law equipment, when he wore hearing protection.  The clinical diagnoses included sensorineural hearing loss and presbycusis.

In the VA examiner's opinion, the Veteran's bilateral hearing loss was less likely than not (less than a 50/50 probability) caused by or a result of his military occupation as a track vehicle mechanic and motor vehicle driver.  The examiner explained that the Veteran's current hearing loss was most likely due to the following factors: military noise exposure; civilian noise exposure working for the railroad for thirty years; and presbycusis.  The examiner noted that there were no service treatment records to review and that "[t]his is all speculation."

In a January 2010 addendum, the VA examiner stated that the Veteran's current hearing loss was not due to his military occupational as a track vehicle mechanic but she did not provide a rationale for her opinion.

Then, in a July 2010 Addendum, the VA examiner stated that she was unable to resolve the issue of whether the Veteran's hearing was related to his military occupation as a track vehicle mechanic without resort to mere speculation, as there were no induction or separation examinations to review.  This opinion is not sufficient for adjudication purposes.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

As discussed above, upon review of the evidence in this case, in January 2014, the Board sought an opinion from a VHA medical expert as to whether it was at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's bilateral hearing loss had its clinical onset in service or was otherwise (in whole or part) related to active duty, including exposure to acoustic trauma.

In the March 2014 opinion, the VHA physician, an otolaryngologist, noted his review of the Veteran's medical records, and opined that there was more than a 50 percent probability that the Veteran's acoustic trauma and subsequent hearing loss had its clinical onset during his time of active duty.

The VA medical specialist explained that bilateral sensorineural hearing, such as the Veteran exhibited, was usually multifactorial, with possible causes including age, noise exposure and genetic predisposition.  It was impossible to determine how much each of these factors had on the Veteran.  The VHA physician believed that the Veteran's significant noise exposure history played a large role in his developing hearing loss.  It was noted that the majority of the Veteran's lifetime noise exposure came after his military service.  However, in the examiner's opinion, there was more than a 50 percent probability that the acoustic trauma and subsequent hearing loss had its clinical onset in military service.

Here, the only probative medical opinion of record, that of the March 2014 VHA examiner, supports a link between the Veteran's current bilateral hearing loss and his active military service.  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008);

As the evidence reflects that the Veteran has bilateral hearing loss, and was exposed to acoustic trauma during active service during the Korean conflict, and a VHA examiner concluded that it there was more than a 50 percent probability that the Veteran's acoustic trauma and subsequent hearing loss had its clinical onset during his active duty, the criteria for service connection for bilateral hearing loss as incurred during active military service, are met.  38 U.S.C.A. �� 1110, 1131, 5107(b); 38 C.F.R. � 3.303.

ORDER

Service connection for bilateral hearing loss is granted.

____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: J A MARKEY

condition: ptsd

text:
Citation Nr: 1413000
Decision Date: 03/27/14    Archive Date: 04/08/14

DOCKET NO.  10-45 593	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island

THE ISSUE

Entitlement to an effective date prior to November 15, 1989, for the grant of a total (100 percent) rating for posttraumatic stress disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Bridgid D.Cleary

INTRODUCTION

The Veteran served on active duty from October 1968 to June 1972.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Providence, Rhode Island, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in November 2012.  A transcript of the hearing is associated with the claims file.

FINDINGS OF FACT

1.  The Veteran was awarded the current effective date in a November 1994 Board decision.

2.  The Veteran has not alleged clear and unmistakable error (CUE) in the November 1994 Board Decision.

3.  The Veteran filed the current claim for an earlier effective date in December 2009.

CONCLUSION OF LAW

1.  The November 1994 Board Decision is final.  38 U.S.C.A. � 7104 (West 2002); 38 C.F.R. � 20.1100 (2013).

2.  The Veteran's claim of entitlement to an effective date earlier than November 15, 1989, for an increased disability rating of 100 percent for PTSD lacks legal merit and is dismissed.  38 C.F.R. � 20.101 (2013); Rudd v. Nicholson, 20 Vet. App. 296 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Procedural History

The record reflects that the Veteran was originally granted service connection for anxiety neurosis in a December 1973 rating decision, which assigned a 10 percent evaluation effective July 11, 1973.  The Veteran did not appeal that decision or submit additional material evidence within one year, so it became final in December 1974.  See 38 C.F.R. �� 3.156(b), 20.1103.

In May 1978, the Veteran filed a claim for an increased rating.  As a result, his rating for anxiety neurosis was increased to 50 percent, effective May 12, 1977.  See September 1978 Rating Decision.

Thereafter, the Veteran filed a claim for an increased rating, which was denied in an October 1979 rating decision.

The Veteran filed another claim for an increased rating in November 1980.  This claim was denied in a January 1981 rating decision.  The Veteran filed a notice of disagreement to this rating decision and a statement of the case was issued, but the appeal was never perfected.  Instead, the Veteran withdrew his appeal in April 1981.

In a February 1984 rating decision, the Veteran's rating was reduced to 30 percent based on improvement shown.  The Veteran appealed that rating decision.  In a December 1984 Board decision, the Veteran was denied entitlement to an increased evaluation in excess of 30 percent for anxiety with depression.  This decision became final as of the date stamped on its face.  38 C.F.R. � 20.1100.

The Veteran filed a claim for posttraumatic stress disorder (PTSD) in February 1985.  In a March 1985 rating decision, which denied an increased rating for the Veteran's service connected anxiety, the RO noted that the Veteran had recently been diagnosed with PTSD and although this may be part of his symptomology, establishment of a separate service connected disability was not warranted.  The Veteran then submitted private treatment records in April 1985.  In an April 1985 rating decision, he was again denied an increased rating for anxiety.

In an April 1988 rating decision, the 30 percent rating was confirmed and continued.  The Veteran did not appeal that decision or submit additional material evidence within one year, so it became final in April 1989.  See 38 C.F.R. �� 3.156(b), 20.1103.

The Veteran filed a claim for an increased evaluation in August 1989.  In a February 1990 rating decision, this rating was increased to 50 percent.

A January 1991 rating decision denied a separate award of service connection for PTSD and continued the 50 percent rating for anxiety.  He perfected an appeal of that decision.

In a September 1991 rating decision, the Veteran was awarded a temporary total disability rating following hospitalization for PTSD.

In December 1991, the Veteran's psychiatric disability was recharacterized as PTSD to reflect the current diagnosis and his rating was increased to 70 percent, effective October 29, 1991.

In an April 1992 rating decision, the Veteran was awarded a 100 percent rating, effective May 15, 1991, based on clear unmistakable evidence (CUE) in the December 1991 rating decision.

In a November 1994 Board decision, this effective date was changed to November 15, 1989, the last day the Veteran was employed.  This was effectuated in the November 1994 rating decision.

The Veteran filed a claim for an earlier effective date in November 2008 and withdrew his claim in February 2009.

The Veteran filed a claim for an earlier effective date in December 2009.

Analysis

The Veteran has contended that he should be awarded an effective date total (100 percent) rating for posttraumatic stress disorder than November 15, 1989, for the award of a total (100 percent) rating for posttraumatic stress disorder.  Specifically, he has stated that he had difficulty with relationships and maintaining employment ever since his separation from service.  In doing so, he is relying on his ongoing treatment records, which show that he repeatedly quit jobs after short periods and had difficulty establishing and maintaining relationships with women, as evidence that he was fully disabled since June 1972.

As noted above, a Board decision is final as of the date stamped on its face, unless appealed to the Court or another exception to finality applies (e.g., the Board orders reconsideration of the decision).  38 U.S.C.A. �� 7103, 7104(a); 38 C.F.R. �� 20.1100, 20.1104.  As such, the November 1994 Board decision is final.

The only options the Veteran has to contest the Board's November 1994 determination regarding the effective date of the 100 percent rating for PTSD are: appeal to the United States Court of Appeals for Veterans Claims; request the Board to reconsider the November 1994 determination; request the Board to vacate the November 1994 determination; file with the Board a motion for revision of the November 1994 decision based on clear and unmistakable error.  To date, the Veteran has not taken any of the above courses of action.

The Veteran's arguments do not amount to an allegation of clear and unmistakable error (CUE).  The Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error."  See Fugo v. Brown, 6 Vet. App. 40 (1993); 38 U.S.C.A. � 7111; 38 C.F.R. � 20.1403.  Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity.  Id.  The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.  Id.  Here, it is clear the Veteran never specifically alleged CUE with the November 1994 Board decision.  The Veteran is not alleging the correct facts were not available to the adjudicators or that some other specific "error" was made.  Rather, the Veteran is arguing that his documented symptoms then are similar to his symptoms now and they should have warranted a higher rating previously.  These records were before the prior reviewers and were used to establish the progressively worsening disability picture that led to his gradual increase in rating.  The Veteran's arguments do not amount to alleging CUE as to disturb the finality of any past unappealed rating decision.

Instead of contesting the November 1994 Board decision in one of the manners described above, the Veteran submitted a claim for an earlier effective date directly to the RO in December 2009.

Once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a "freestanding" earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  The Court reasoned that to allow such claims would vitiate the rule of finality.  Id.

As the Veteran did not allege CUE in the November 1994 decision that awarded the earlier effective date, his current claim may not be reasonably construed as a claim based upon CUE and the RO has not developed the issue.  Thus, the Board finds no allegation of fact or law upon which relief may be granted.  To find otherwise, the Board would err in entertaining a "freestanding claim" without imposing the strictures of finality.  Rudd, 20 Vet. App. at 300.  Accordingly, the Veteran's claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit).

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).

ORDER

Entitlement to an effective date prior to November 15, 1989, for the assignment of a 100 percent disability evaluation for posttraumatic stress disorder is denied.

____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: C TRUEBA

text:
Citation Nr: 1414000
Decision Date: 04/01/14    Archive Date: 04/11/14

DOCKET NO.  11-27 514	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUE

Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU).

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

J. Barone, Counsel

INTRODUCTION

The Veteran had active service from October 1967 to July 1972.

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Veteran and his wife testified before the undersigned Veterans Law Judge via videoconference in January 2012.  A transcript of the hearing has been associated with the claims file.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.

REMAND

The Veteran seeks a TDIU, asserting that his service-connected posttraumatic stress disorder (PTSD) and heart disease preclude employment.  At his January 2012 hearing, the Veteran testified that his psychiatric symptoms impacted his ability to work, and that his heart disability produced physical limitations.  He and his wife identified various private providers.  The Board notes that some private records are associated with the claims file; however, it is not clear whether there are any outstanding private medical records.  This question should be clarified.

The Board further notes that the Veteran has not been afforded VA examinations to ascertain whether his service-connected PTSD (evaluated as 70 percent disabling) and/or heart disease (evaluated as 60 percent disabling) render him unemployable.  At his hearing, he described the limitations placed on him by his service-connected disabilities.  The Board acknowledges that the Veteran has a nonservice-connected visual impairment for which he is in receipt of Social Security Administration disability benefits, and that there is evidence that he left his most recent employment more than 20 years ago due to that disability.  However, in light of the evaluations assigned to his service-connected disabilities, the Board has concluded that examinations to determine the impact of these disabilities on potential employment are warranted.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for each private provider from whom he has received treatment for his service-connected PTSD and heart disease.  Upon receipt of such, VA must take appropriate action to contact the above providers and request all outstanding records related to PTSD and heart disease.  The Veteran should be informed that in the alternative he may obtain and submit the records himself.

2.  Schedule the Veteran for VA psychiatric and cardiovascular examinations to determine whether the Veteran is unemployable as the result of his service-connected PTSD and/or heart disorder.

The claims file should be forwarded to the examiners for review.  The examiners should be directed to elicit a complete employment history from the Veteran, the pertinent details of which should be recited in the examination reports.  All indicated testing should be carried out and the results recited in the examination reports.

Following examination, interview of the Veteran, and review of the claims file, the examiners should discuss the impact of the Veteran's PTSD or heart disease (as relevant to the individual examination) on his ability to obtain and maintain gainful employment.  Specifically, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's service-connected disabilities alone render him unable to obtain or maintain gainful employment.

If the above inquiry cannot be addressed, the examiner should provide a complete explanation as to why it cannot be addressed.

The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate.  If the examiner determines that he is unable to provide the requested opinions without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record.

3.  Review the examination report for compliance with the Board's directives.  Any deficiencies should be resolved prior to recertification to the Board.

4.  The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. �� 3.158, 3.655.

5.  Upon completion of the above development and any additional development deemed appropriate, readjudicate the issue on appeal.  All applicable laws and regulations should be considered.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

_________________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).