judge_norm: GEORGE E GUIDO JR

condition: psychiatric

text:
Citation Nr: 1033000
Decision Date: 09/01/10    Archive Date: 09/13/10

DOCKET NO.  05-36 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUE

Entitlement to service connection for a psychiatric disorder,
bipolar disorder.

REPRESENTATION

Veteran represented by:	AMVETS

ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from
November 1966 to October 1968.

This matter is before the Board of Veterans' Appeals (Board) on
appeal of a rating decision in February 2005 of the Department of
Veterans Affairs (VA) Regional Office (RO) in Oakland,
California.

This case was previously before the Board in December 2009, when
it was remanded for further development, including a VA
examination and opinion.  As the requested development has been
completed, no further action to ensure compliance with the remand
directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

FINDING OF FACT

Clear and unmistakable evidence establishes that the Veteran had
a preexisting psychiatric disorder, schizophrenia, latter
corrected to bipolar disorder, and clear and unmistakable
evidence establishes that the preexisting psychiatric disorder
was not aggravated by service.

CONCLUSION OF LAW

Schizophrenia, latter corrected to bipolar disorder, preexisted
service and was not aggravated by service, rebutting the
presumption of soundness and entitlement to service connection
for a psychiatric disorder, bipolar disorder, is not established.
38 U.S.C.A. �� 1110, 1111, 1153, 5107(b) (West 2002); 38 C.F.R.
�� 3.303, 3.306 (2009).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. �� 5103, 5103A, and
implemented in part at 38 C.F.R � 3.159, amended VA's duties to
notify and to assist a claimant in developing information and
evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1) any
information and medical or lay evidence that is necessary to
substantiate the claim, (2) what portion of the information and
evidence VA will obtain, and (3) what portion of the information
and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of
a service connection claim.  The five elements are: (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 VCAA notice must be provided to a claimant before the initial
unfavorable adjudication by the RO.  Pelegrini v. Principi, 18
Vet. App. 112 (2004).

The RO provided pre- and post- adjudication VCAA notice by
letters, dated in October 2004, in June 2007, and in May 2009.
The Veteran was notified of the evidence needed to substantiate
the claim of service connection, including as due to aggravation
of a pre-existing condition in service, namely, evidence of
current disability; evidence of an injury or disease in service
or event in service, causing injury or disease; and evidence of a
relationship between the current disability and the injury,
disease, or event in service; or evidence that the pre-service
disability underwent an increase in severity during service.

Additionally, the Veteran was notified that VA would obtain VA
records and records of other Federal agencies, and that he could
submit other records not in the custody of a Federal agency, such
as private medical records or with his authorization VA would
obtain any such records on his behalf.  The notice included the
general provisions for the effective date of a claim and the
degree of disability assignable.

As for content of the VCAA notice, the documents substantially
complied with the specificity requirements of Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (identifying evidence to
substantiate a claim and the relative duties of VA and the
claimant to obtain evidence); of Charles v. Principi, 16 Vet.
App. 370 (2002) (identifying the document that satisfies VCAA
notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to
the extent there was pre-adjudication notice); and of Dingess v.
Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the
claim).

To the extent that the VCAA notice came after the initial
adjudication, the timing of the notice did not comply with the
requirement that the notice must precede the adjudication.  The
procedural defect was cured as after the RO provided content-
complying VCAA notice the claim was readjudicated, as evidenced
by the supplemental statements of the case in May 2009, August
2009, and June 2010.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed.
Cir. 2007) (Timing error cured by adequate VCAA notice and
subsequent readjudication without resorting to prejudicial error
analysis.).

Duty to Assist

Under 38 U.S.C.A. � 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim.  The RO has obtained the service treatment
and service personnel records, VA records, and records from
Oregon State Hospital.

The RO also attempted to obtain records of in-service treatment
through the U.S. Embassy Health Unit in Germany, but was unable
to do so.  The Veteran was advised of this attempt and the
unavailability of these records.  He has not identified any
additional pertinent records for the RO to obtain on his behalf.

In February 2010, VA conducted medical inquiry in the form of a
VA compensation examination in an effort to substantiate the
claim of service connection.  The Board notes that the VA
examination report contains sufficiently specific clinical
findings and informed discussion of the pertinent history and
features of the disability on appeal to provide probative medical
evidence.  The Board finds that the record as it stands includes
adequate competent evidence to allow the Board to decide the case
and no further action is necessary.  38 C.F.R. � 3.159(c)(4).

As there is no indication of the existence of additional evidence
to substantiate the claim, the Board concludes that no further
assistance to the Veteran in developing the facts pertinent to
the claim is required to comply with the duty to assist.

REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by active military
service.  38 U.S.C.A. � 1110.

Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred coincident with service, or if
preexisting such service, was aggravated by service.  This may be
accomplished by affirmatively showing inception or aggravation
during service.  38 C.F.R. � 3.303(a).

A veteran is presumed to be in sound condition when he entered
into military service except for conditions noted on the entrance
examination.  This presumption of soundness, however, may be
rebutted by clear and unmistakable evidence that the disorder
existed prior to entry into service and that the disorder was not
aggravated by such service.  38 U.S.C.A. � 1111; 38 C.F.R. �
3.304.

Aggravation may not be conceded where the disability underwent no
increase in severity during service, on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service.
38 U.S.C.A. � 1153; 38 C.F.R. � 3.306.

Evidentiary Standards

VA must give due consideration to all pertinent medical and lay
evidence in a case where a Veteran is seeking service connection.
38 U.S.C.A. � 1154(a).  The Veteran does not argue and the record
does not show that the Veteran served in  combat with the enemy,
and the combat provisions of 38 U.S.C.A. � 1154(b) do not apply.

Competency is a legal concept in determining whether medical or
lay evidence may be considered, in other words, whether the
evidence is admissible as distinguished from weight and
credibility, a factual determination going to the probative value
of the evidence, that is, does the evidence tend to prove a fact,
once the evidence has been admitted.  Rucker v. Brown, 10 Vet.
App. 67, 74 (1997).

Competent lay evidence means any evidence not requiring that the
proponent have specialized education, training, or experience.
Lay evidence is competent if it is provided by a person who has
knowledge of facts or circumstances and conveys matters that can
be observed and described by a lay person.  38 C.F.R. � 3.159.

Competent medical evidence means evidence provided by a person
who is qualified through education, training, or experience to
offer a medical diagnosis, statement, or opinion.  38 C.F.R. �
3.159.

The Board, as fact finder, must determine the probative value or
weight of the admissible evidence.  Washington v. Nicholson, 19
Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369,
1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be
done by the Board")).

When there is an approximate balance of positive and negative
admissible evidence regarding any issue material to the
determination of a matter, the Secretary shall give the benefit
of the doubt to the Veteran.  38 U.S.C.A. � 5107(b).

Facts

Prior to service entrance, in November 1962, the Veteran was
committed by the court to Oregon State Hospital for a mental
health assessment based on his confused and disorganized
behavior.  Six months prior to his hospitalization he had become
increasingly nervous and had begun having difficulty getting
along with fellow students and instructors at a barber college.

During the week prior to admission he became increasingly
disorganized, imagining that he saw old friends on television and
feeling like people were watching him through the television.  He
was picked up by the police for throwing rocks at cars, shouting,
and running about in a confused manner.  He was taken to the
county jail and subsequently court committed.  On mental status
evaluation the Veteran was obviously somewhat confused and
demonstrated paranoid ideas regarding his presence in the
hospital.  The diagnosis was schizophrenia, paranoid type, was
given.

The Veteran's service treatment records show that on induction
examination in February 1966 he disclosed his prior mental health
treatment at Oregon State hospital for a nervous disorder.  On
separation examination in August 1968, his pre-service mental
health hospitalization was also noted, but no mental health
treatment or diagnosis in service was recorded.

The Veteran's service treatment and service personnel records are
silent as to any in-service complaints, treatment, or diagnosis
for mental health problems.  His service personnel records
contain a letter of appreciation from his superior for his work
as a cook, including his dedication and willingness to work long
hours when necessary.

After service on a biopsychosocial evaluation in June 2001, the
Veteran gave a history of several manic episodes, each
precipitated by a significant stressor, and current treatment
with lithium for ten years.  His first episode was at age 21 and
was precipitated by the death of his father; at that time he was
hospitalized for 30 days with a diagnosis of paranoid
schizophrenia.  After that he was well until 10 years previously
when he had a manic episode soon after the death of his son.
Five years previously he had another manic episode when he had
gall bladder surgery. The impression was a history of bipolar
disorder.

In April 2002, the Veteran was seen for his first meeting with a
mental health provider after entering the VA system one and a
half years prior, partly for treatment of the previously
diagnosed bipolar disorder. The diagnosed was bipolar disorder in
remission.

In a statement in August 2004, the Veteran stated that after his
hospitalization in Oregon for paranoid schizophrenia, he did not
receive any further treatment until May 1968 when he reported to
the Medical Clinic at the American Embassy at Bonn, Germany,
because he was not feeling well.  He provided the history of his
former mental health treatment to the physician at that time.  He
was then working as a missile crewman at a remote site where
nuclear warheads were kept.  The physician initiated a release
from missile duty and the Veteran was then assigned duty as a
cook at the same remote missile site until his discharge.

The Veteran also stated that he was treated for his mental health
issues at hospitals in McClellan, Mather, and Fort Miley,
California, where he was diagnosed with bipolar mental illness
and manic depression.

The Veteran asserted that he had a long period of time prior to
his entry on active duty in November 1966 without any signs of
mental illness and that while on active duty in training and as a
Nike missile crewman involved with nuclear weapons his activities
triggered his mental illness and greatly contributed to a life-
long siege of mental problems, including a long and current
period of mental treatment within the VA system since 1989.

In August 2004, the Veteran was seen at VA for a check on his
medication. The Veteran stated that his prior mental health
difficulties stopped him from getting a top security clearance to
work at missile site and he was taken off missile duty.  He
stated that he had been hospitalized for a manic episode in 1992
in San Francisco.  The VA physician stated that the Oregon State
Hospital diagnosis of paranoid schizophrenia was in error and
should have been bipolar disorder.  The VA physician stated that
in all likelihood the military did not help the Veteran's bipolar
disorder and probably exacerbated it.  The diagnosis was bipolar
disorder in partial remission.  Thereafter the Veteran was seen
again at regular intervals in February 2005, in July 2005, in
August 2005, in January 2006, in May 2006, in September 2006, and
in July 2007.

In a statement in September 2005, the Veteran stated that he
sought service connection and compensation for severe aggravation
of his mental illness caused by his active duty service.  He
reported treatment at the American Embassy in Bonn Germany by an
American psychiatrist in April or May 1968 which caused him to be
removed from duty as a missile crewman due to his mental illness,
asserting there was no other possible reason why he was removed
from his sensitive position as a missile crewman and reassigned
as a cook.  He stated that he did not have an active mental
disability when he was inducted into the military, but the nature
of his assigned duty as a ballistic missile crewman caused a
great awakening of a prior mental illness and resulted in a life-
long disability that had greatly hampered his ability to lead an
ordinary life.

The RO endeavored to obtain records of the identified treatment
in Bonn, Germany.  In March 2008, in response to a request, the
U.S. Embassy Health Unit reported that it did not have any
medical records pertaining to the Veteran.
On VA examination in February 2010, the Veteran's claims file was
reviewed, including the report of his treatment in Oregon State
Hospital in 1962.  The Veteran reported that while in service he
was shifted from working on a missile base in Germany to being a
cook after seeing a doctor, but the examiner could find no
evidence of any military mental treatment or negative behavioral
observations.  The Veteran stated that he received no mental
health treatment after his hospitalization in 1962 and was
drafted four years later.  His first post-service psychiatric
treatment was at age 48 after he was hospitalized for heart
surgery.  The Veteran told the examiner that he had been taking
lithium for over 20 years.  On mental status examination, the
Veteran was very focused on the possible reason for his being
reassigned from missile duty to cook while in Germany and
suspected it had something to do with his diagnosis of paranoid
schizophrenia in 1962.  He reported that some VA doctors had told
him that his bipolar disorder could have been exacerbated by his
military service.  The diagnosis was bipolar disorder.

The VA examiner noted that at the onset of bipolar illness an
initial diagnosis of paranoid schizophrenia was not uncommon
because of the overlap between the diagnostic elements of
paranoid schizophrenia and bipolar disorder; only after
psychiatric observation over time could bipolar disorder be truly
diagnosed.  As the Veteran had two psychiatric hospitalizations
28 years apart (in 1962 and 1990), the examiner found that the
Veteran had subclinical symptoms of bipolar disorder over the
intervening years, although there was no record of it.  It was
the examiner's opinion that the initial diagnosis of paranoid
schizophrenia in 1962 was a misdiagnosis and that he was actually
manifesting symptoms of bipolar disorder at that time.  Since
there was no need for acute psychiatric treatment again until the
age of 48, the examiner felt there was no aggravation prior to
that, including during his military service.  The examiner noted
that there was nothing to indicate that the preexisting condition
was aggravated by the Veteran's Army service.

Analysis

The service personnel records show that the Veteran's duties were
changed from missile crewman to cook in July 1967, prior to being
assigned to a unit in Germany. In Germany, the Veteran's
principle duty was listed as a security guard, but he was
commended by his unit commander for his outstanding service as a
cook.  During service and while in Germany, the Veteran was rated
excellent in both conduct and efficiency.

Although there was a history of a preservice nervous condition
recorded on entrance examination, history alone does not
constitute a notation to rebut the presumption of soundness.
Therefore the Veteran is presumed to have been in sound condition
upon entry to service.  38 U.S.C.A. � 1111.

The standard for rebutting the presumption of soundness requires
that VA show by clear and unmistakable evidence that the
Veteran's disability both preexisted service and was not
aggravated by service.  38 C.F.R. � 3.304(b).

The records of the Oregon State Hospital, dated in 1962, prior to
the Veteran's service in 1996, documenting a diagnosis of
schizophrenia, is clear and unmistakable evidence that the
Veteran had a preexisting psychiatric disorder. 38 U.S.C.A. �
1111.

The remaining question is whether the preexisting condition was
aggravated by service.  The burden is on VA to rebut by clear and
unmistakable evidence that the preexisting disability was not
aggravated by service.  A lack of aggravation may be shown by
establishing that there was no increase in disability during
service.

Aggravation may not be conceded where the disability underwent no
increase in severity during service, on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service.
38 U.S.C.A. � 1153; 38 C.F.R. � 3.306.

On the question aggravation, one VA physician stated that the
Veteran's military service probably exacerbated the bipolar
disorder.  The VA physician did not identify what, if any, fact
in the service treatment records supported such a conclusion.
Rather the records show that the Veteran successfully completed
his tour in Germany and was recognized for his service as a cook
and his conduct and efficiency marks were excellent then and
throughout his enlistment.  And on separation examination, the
examiner found no sequelae to the Veteran's history of
psychiatric hospitalization before service.  In other words there
is no evidence of an increase in disability during service, on
the basis of all the evidence of record, pertaining to the
manifestations of the psychiatric disorder prior to service
(requiring hospitalization), during service (no treatment or
hospitalization), and subsequent to service (first hospitalized
in the 1990s, 20 years after service).

With regard to medical opinions, the probative value or
evidentiary weight to be attached to a medical opinion is within
the Board's province as finder of fact. The guiding factors in
evaluating the probative value of a medical opinion include
whether the opinion is based upon sufficient facts and whether
the opinion applied valid medical analysis to the significant
facts of the case in order to reach the conclusion submitted in
the opinion.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008).

Greater weight may be placed on one physician's opinion over
another's depending on factors such as reasoning employed by the
physicians, and whether or not and to what extent they review
prior clinical records and other evidence.  Gabrielson v. Brown,
7 Vet. App. 36 (1994).

As the opinion of the VA physician that the Veteran's military
service probably exacerbated the bipolar disorder does not
account for the lack of evidence of any evidence of an increase
in disability during service, the Board cannot conclude that the
opinion accounts for the significant facts in the record, the
opinion is discounted accordingly.

While the Veteran is competent to describe symptoms of an
illness, his statements that he was removed for his duties as a
missile crewman in Germany by a psychiatrist at the American
Embassy in Bonn are not credible as his duty change from missile
crewman to cook occurred in July 1967 before he went to Germany
in 1968.  And while in Germany his duties were listed as a
security guard, not a missile crewman, but he actually performed
duties as a cook for which he was commended.

To the extent the Veteran's statements are offered as a lay
opinion on aggravation, a lay person is competent to offer an
opinion on a simple medical condition, a contemporaneous medical
diagnosis, or symptoms that later support a diagnosis by a
medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316
(Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372
(Fed. Cir. 2007) (noting, in a footnote, that sometimes a lay
person will be competent to identify the condition where the
condition is simple, for example a broken leg, and sometimes not,
for example, a form of cancer)).  Competency is a question of
fact, which is to be addressed by the Board.  Jandreau at 1377.

In this case, the question of aggravation, that is, an increase
in disability, cannot be determined by one's own personal
observation without having specialized education, training, or
experience.  38 C.F.R. � 3.159 (Competent lay evidence means any
evidence not requiring that the proponent have specialized
education, training, or experience); Layno v. Brown, 6 Vet. App.
465, 469 (1994) (a witness must have personal knowledge in order
to be competent to testify to a matter; personal knowledge is
that which comes to the witness through the use of the senses.).

And it is not argued or shown that the Veteran is otherwise
qualified through specialized, education, training, or experience
to offer an opinion on aggravation of a preexisting psychiatric
disorder.

For this reason, the Board rejects the Veteran's opinion as
competent evidence to substantiate the claim of aggravation.

Although the Veteran is competent to relate a contemporaneous
medical diagnosis and symptoms that later support a diagnosis of
a medical professional, the Board as previously explained has
discounted the favorable medical opinion, pertaining to
aggravation, because the opinion fails to account for the
significant facts of the case, specifically, the lack of evidence
during service of an increase in disability.

The evidence against aggravation consists of the opinion of the
VA examiner that the Veteran's preexisting mental disorder was
not aggravated in service because of the long period of time
between his manic episodes, requiring hospitalization.

Here, the VA examiner explained that the Veteran's first
manifestation of bipolar disorder after service was in 1990 when
he was treated for a manic episode following heart surgery.  It
was at that time that he was first prescribed medication, which
was 28 years after his previous manic episode in 1962 and 25
years after service separation.  A lengthy period of time between
service and the first post-service clinical notation of
complaints or symptoms associated with the disability at issue is
of itself a factor for consideration against a finding that the
current disability is related to service.  See Maxson v. Gober,
230 F.3d. 1330, 1333 (Fed. Cir. 2000) (in a claim alleging that a
disability was aggravated by service).

In summary, the Board finds that the VA examiner's opinion
reflects a full review of all the evidence of record and is
supported by detailed findings and rationale.

Accordingly, the Board finds that the opinion of the VA examiner
is clear and unmistakable evidence that preexisting psychiatric
disorder was not aggravated by service, where there is no
evidence of an increase in disability during service, and
entitlement to service connection is not established.  Wagner v.
Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

ORDER

Service connection for a psychiatric disorder, bipolar disorder,
is denied.

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

 Department of Veterans Affairs


series: legacy

judge_norm: MILO H HAWLEY

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 1035000
Decision Date: 09/16/10    Archive Date: 09/21/10

DOCKET NO.  05-41 193	)	DATE
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi

THE ISSUE

Whether new and material evidence has been presented to reopen a
claim of entitlement to service connection for an enlarged
prostate

REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.

ATTORNEY FOR THE BOARD

M. Taylor, Counsel

INTRODUCTION

The appellant served on active duty from January 1967 to January
1971.

This case comes before the Board of Veterans' Appeals (the Board)
on appeal from rating decisions of the Jackson, Mississippi, VA
Regional Office (RO).

This case has previously come before the Board.  In April 2008,
the matter was remanded to the agency of original jurisdiction
(AOJ) for additional development.  The case has been returned to
the Board for further appellate review.

FINDINGS OF FACT

1.	The Veteran in this case served on active duty from January
1967 to January 1971.

2.	On July 16, 2010, prior to the promulgation of a decision
in the appeal, the Board received notification from the
appellant, through his authorized representative, that a
withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (or his
or her authorized representative) have been met.  38 U.S.C.A.
� 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. � 20.204 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific
error of fact or law in the determination being appealed.
38 U.S.C.A. � 7105 (West 2002).  An appeal may be withdrawn as to
any or all issues involved in the appeal at any time before the
Board promulgates a decision.  38 C.F.R. � 20.204 (2009).
Withdrawal may be made by the appellant or by his or her
authorized representative.  38 C.F.R. � 20.204.  In the present
case, the appellant, through his/her authorized representative,
has withdrawn this appeal and, hence, there remain no allegations
of errors of fact or law for appellate consideration.
Accordingly, the Board does not have jurisdiction to review the
appeal and it is dismissed.

ORDER

The appeal is dismissed.

MILO H. HAWLEY
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: GEORGE E GUIDO, JR

disposition: denied

condition: headache

text:
Citation Nr: 1036000
Decision Date: 09/23/10    Archive Date: 09/30/10

DOCKET NO.  05-22 284	)	DATE
	)
	)

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

THE ISSUE

Entitlement to a rating higher than 10 percent for hypertension
before July 12, 2005, and a rating higher than 20 percent for
hypertension with headaches, dizziness, and fatigue, from July
12, 2005.

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Russell P. Veldenz
INTRODUCTION

The Veteran, who is the appellant, served on active duty from
August 1965 to August 1969.

This matter is before the Board of Veterans' Appeals (Board) on
appeal of a rating decision in January 2005 of a Department of
Veterans Affairs (VA) Regional Office (RO).  While on appeal in a
rating decision dated in February 2006, the RO increased the
rating to 20 percent, effective July 12, 2005.

In September 2005, the Veteran appeared at a hearing before a
Decision Review Officer.  A transcript of the hearing is in the
record.

In July 2009, the Board remanded the case for further
development.  As the requested development has been completed, no
further action is necessary to comply with the Board's remand
directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

FINDINGS OF FACT

1. From the date of receipt of the current claim for increase and
before July 12, 2005, hypertension has been manifested by the
diastolic blood pressure readings predominantly less than 110 and
systolic blood pressure predominantly less than 200.

2. From July 12, 2005, hypertension with headaches, dizziness,
and fatigue is manifested by diastolic blood pressure
predominantly less than 120.

3. Symptoms of headaches, dizziness, and fatigue are not
compensably disbling.

CONCLUSIONS OF LAW

1. The criteria for a rating higher than 10 percent for
hypertension before July 12, 2005, and for a rating higher than
20 percent since July 12, 2005, for hypertension with headaches,
dizziness, and fatigue have not been met. 38 U.S.C.A. �� 1155,
5107(b) (West 2002); 38 C.F.R. �� 4.1, 4.104, Diagnostic Code
7101 (2009).

2. The criteria for a separate rating for headaches, dizziness,
and fatigue are not met.  38 U.S.C.A. �� 1155, 5107(b) (West
2002); 38 C.F.R. �� 4.1, 4.104, Diagnostic Codes 7007, 8100
(2009).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. �� 5103, 5103A, and
implemented in part at 38 C.F.R � 3.159, amended VA's duties to
notify and to assist a claimant in developing information and
evidence necessary to substantiate a claim.

Duty to Notify

Under 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b), when VA
receives a complete or substantially complete application for
benefits, it will notify the claimant of the following: (1) any
information and medical or lay evidence that is necessary to
substantiate the claim, (2) what portion of the information and
evidence VA will obtain, and (3) what portion of the information
and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of
a service connection claim.  The five elements are: 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, 484-86 (2006).

In a claim for increase, the VCAA notice requirements are the
type of evidence needed to substantiate the claim, namely,
evidence demonstrating a worsening or increase in severity of the
disability and the effect that worsening has on employment.
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009)
(interpreting 38 U.S.C.A. � 5103(a) as requiring generic claim-
specific notice and rejecting Veteran-specific notice as to
effect on daily life and as to the assigned or a cross-referenced
Diagnostic Code under which the disability is rated).

The VCAA notice, as required by 38 U.S.C.A. � 5103(a), must be
provided to a claimant before the initial unfavorable
adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112,
119 (2004).

The RO provided pre- and post- adjudication VCAA notice by
letter, dated in November 2004, in March 2006, in April 2007, in
December 2007, in January 2009, and in August 2009.  The VCAA
notice included the type of evidence needed to substantiate the
claim for increase, namely, evidence that the symptoms had
increased and the effect on employment.

The Veteran was notified that VA would obtain VA records and
records from other Federal agencies, and that he could submit
other records not in the custody of a Federal agency, such as
private medical records or with his authorization VA would obtain
any non-Federal records on his behalf.  The notice included the
provisions for the effective date of a claim and for the degree
of disability assignable.

As for content of the VCAA notice, the documents complied with
the specificity requirements of Quartuccio v. Principi, 16 Vet.
App. 183, 186-87 (2002) (identifying evidence to substantiate a
claim and the relative duties of VA and the claimant to obtain
evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002)
(identifying the document that satisfies VCAA notice); of
Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the
extent of pre-adjudication VCAA notice); of Dingess v. Nicholson,
19 Vet. App. 473, 484-86 (2006) (notice of the elements of the
claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir.
2009) (evidence demonstrating a worsening or increase in severity
of a disability and the effect that worsening has on employment).
To the extent that the VCAA notice came after the initial
adjudication, the timing of the notice did not comply with the
requirement that the notice must precede the adjudication.  The
timing error was cured by content-complying VCAA notice after
which the claim was readjudicated as evidenced by the
supplemental statements of the case, dated in May 2006, August
2007, October 2007, March 2009, April 2009, and May 2010.
Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007)
(Timing error cured by adequate VCAA notice and subsequent
readjudication without resorting to prejudicial error analysis.).

Duty to Assist

Under 38 U.S.C.A. � 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate a claim.  The RO has obtained VA records and private
medical records.  The Veteran was afforded several VA
examinations.

In June 2010, the Veteran submitted additional evidence without a
waiver of the right to have the evidence initially considered by
the RO.  The evidence consists of VA records showing that the
Veteran's blood pressure is above the targeted range with
medication.  As this evidence is cumulative of the evidence
already of record, the evidence need not be referred to the RO
for initial consideration.  38 C.F.R. � 1304(c).  Also, as the
evidence does not suggest a material change in the disability, a
reexamination under 38 C.F.R. � 3.327 is not warranted.

As the Veteran has not identified any additional evidence
pertinent to the claim and as there are no additional records to
obtain, the Board concludes that no further assistance to the
Veteran in developing the facts pertinent to the claim is
required to comply with the duty to assist.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Rating Principles

Disability evaluations are determined by the application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4.  The percentage ratings contained in the Rating Schedule
represent, as far as can be practicably determined, the average
impairment in earning capacity resulting from diseases and
injuries incurred or aggravated during military service and their
residual conditions in civil occupations.  38 U.S.C.A. � 1155.
Separate Diagnostic Codes identify the various disabilities.  38
U.S.C.A. � 1155; 38 C.F.R. � 4.1.

VA has a duty to acknowledge and consider all regulations that
are potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases for
its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589, 592-93
(1991).

Where there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria for that rating.
Otherwise the lower rating will be assigned.  38 C.F.R. � 4.7.

The Board will consider whether separate ratings may be assigned
for separate periods of time based on facts found, a practice
known as "staged ratings."  Fenderson v. West, 12 Vet. App.
119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519
(2007).

Hypertension is under Diagnostic Code 7101.  Under Diagnostic
Code 7101, the criteria for a 10 percent rating are diastolic
pressure predominantly 100 or more, or; systolic pressure
predominantly 160 or more, or, there is a history of diastolic
pressure predominantly 100 or more requiring continuous
medication for control.

The criteria for the next higher rating, 20 percent, are
diastolic pressure predominantly 110 or more; or systolic
pressure predominantly 200 or more.  The criterion for the next
higher rating, 40 percent, are diastolic pressure predominantly
120 or more; and the criterion for a 60 percent rating, is
diastolic pressure predominantly 130 or more.

Effective October 6, 2006, Diagnostic Code 7101 was amended so
that hypertension was to be evaluated separately from
hypertensive heart disease and other types of heart disease, but
there was no change in the rating criteria.

Facts

When the Veteran filed his claim for increase in September 2004,
hypertension was rated 10 percent under Diagnostic Code 7101.
The RO, in a rating decision in February 2006, included
headaches, fatigue, and dizziness, as secondary to hypertension
and increased the rating to 20 percent, effective July 12, 2005.

VA records show that in March 2004, the blood pressure reading
was 179/98.  At that time, the Veteran was prescribed two
medications to control his blood pressure.  In June 2004, the
blood pressure reading was 151/94.  In July 2004, the readings
were 140/90 and 134/88.  In October 2004, the blood pressure
reading was 150/100 and his medication was increased.  In
November 2004, blood pressure was 130/100.

On VA examination in December 2004, it was noted that the
Veteran's blood pressure was not well controlled.  There was no
history of coronary artery disease, myocardial infarction, heart
irregularities, strokes, seizures, epilepsy, peripheral vascular
disease, renal disease, or proteinuria.  The Veteran complained
of one dull headache a day and dizziness.  He also complained of
increased fatigue.  The blood pressure readings were 143/90,
143/80, and 134/81.  A chest x-ray did not show an enlarged
heart.

In February 2005, the Veteran's blood pressure was 124/82.  The
Veteran stated that his blood pressure increased with activity,
which made him feel weak and shaky.  In May 2005, blood pressure
was 122/92 and the Veteran complained of dizziness and of
headaches.  He also stated exertion caused the blood pressure to
rise with associated headaches and dizziness, which were relieved
with rest.  The Veteran's medications were increased.

In June 2005 the Veteran underwent a stress test, which was
terminated at the six minute mark because the Veteran was short
of breath.  His EKG was normal.  In August 2005, blood pressure
was 119/70 and it was noted that the blood pressure readings had
been good for 6 months although the Veteran stated it would rise
to 150 to 160/100 with exertion.  A chest x-ray revealed
borderline cardiomegaly.

In December 2005, blood pressure was 100/78.  The Veteran
complained of feeling dizzy when he awakens and that his blood
pressure on a home monitor showed blood pressure of 145/100,
which fell during the day.  It was noted that blood pressure was
controlled.

On VA examination in January 2006, there were no cardiovascular
or cerebral vascular complications.  The examiner noted that a
cardiac catherization was normal.  The Veteran complained of
headaches mainly in the temporal and frontal areas, which
occurred mostly with exertion such as mowing the lawn or doing
yard work.  He stated that when dizzy he becomes very unstable
and he must sit down and that during exertion his blood pressure
was in the range of 145/100 to 180/100.  At the examination, the
blood pressure readings were 150/11, 155/110, and 150/95.

In February 2006, the Veteran had a blood pressure reading of
141/91 and in March 2006 it was 124/78.  In April 2006, the
Veteran's kidneys were normal on an ultrasound.

On VA examination in January 2006, it was noted that the Veteran
had normal renal function.  The Veteran stated that his fatigue
had increased in the previous 3 to 4 years even though he slept
well and that he occasional had dizziness, which occurred mostly
on hot days and when he was overactive.  As for headaches, the
headaches occurred on average 2 to 3 times a week, usually lasted
30 minutes, but the headaches were not debilitating and the
Veteran did not take medication for the headaches.  The headaches
were not associated with blurred vision, diplopia, nausea, or
sensitivity to light, sound, or smell.

It was noted that heart catherization did not show any
significant coronary artery disease and the ejection fracture was
86 percent.  Blood pressure was 180/110, which the examiner
characterized as uncontrolled.  The headaches, dizziness, and
fatigue were attributed to blood pressure and not a heart
problem.  The Veteran had a METS of 5.8.

In August 2006, blood pressure was 118/78.  In September 2006, it
was 140/90.  In November 2006, the blood pressure readings were
150/100, 140/90, and 140/98.  Diet modification and regular
exercise, if feasible, were recommended.

In March 2007, blood pressure was 138/90 and his blood pressure
was described as controlled.  In May 2007, blood pressure was
142/96.  In June 2007, the blood pressure reading was 140/80 and
in July 2007 it was 136/87.

On VA examination in July 2007, the Veteran gave a 16-year
history of being on blood pressure medication.  He denied any
cardiovascular, cerebrovascular, renal, or claudication
complication secondary to the hypertension.  Renal function and
urinalysis tests were normal.   He did complain of recurrent
headaches almost every day that lasted 20 to 30 minutes and that
he could not function and he had to lie down or sit still.  There
is no photophobia or phonobia.  Dizziness occurred with very hot
weather or with overactivity, which lasted only a few minutes and
resolved with rest.  He was fatigued to the point he was unable
to do house work.

The blood pressure readings were 196/106, 196/105, and 195/106.
The diagnosis was uncontrolled hypertension and the dizziness,
recurrent headaches, and fatigue were as likely as not secondary
to the uncontrolled blood pressure.

Also in July 2007, an otolaryngologist concluded the Veteran's
dizziness did not come from a vestibular disorder, but was linked
to hypertensive episodes.

In August 2007, the Veteran's blood pressure was 100/60.

On VA examination in September 2007, the Veteran complained of
headaches with exertion, which happened about three times a week.
The Veteran retired from the construction industry because of the
headaches.  The headaches were not associated with photophobia,
palpitations, perspiring, nausea, or vomiting.  The Veteran had
not fainted or fallen.   It was noted that blood pressure in the
morning was 140/90 and after exertion it is 180-90/100.  Absent
exertion, the blood pressure usually went down later in the day.
The blood pressure readings were 150/100 and 144/100.  The
carotid and radial pulses were normal.  Heart rhythm was regular.
The diagnosis was episodic hypertension syndrome with headaches
and fatigue, but the underlying cause was not yet determined.
The examiner noted that the headaches occurred after mild
exertion, which was atypical and unlikely to be migraine syndrome
and there were no features of chronic fatigue syndrome.

In November 2007, the Veteran's blood pressure was138/80.

On VA examination in January 2008, the Veteran stated his
symptoms were precipitated by mild to moderate exertion and the
disequilibrium and headaches can last until he lies down and
rests for an hour or two.  EKGs have remained normal.  The blood
pressure readings were 170/100 and 165/100.  The carotid pulses
were normal.  The heart had a regular rate and rhythm.  X-rays
did not show an enlargement of the heart and laboratory studies,
including electrolytes and kidney functions, were normal.  The
diagnosis was labile hypertension without any complication from
hypertension over thirty years other than the symptoms of
headaches, dizziness, and fatigue.

In February 2008, the Veteran's blood pressure readings were
144/100, 140/90, 140/100.  His medication regimen was adjusted to
improve blood pressure control.

In March 2008, his blood pressure was 130/82 but a week later was
122/80.  In May 2008, the Veteran's blood pressure was 118/82.

On VA examination in July 2008, the examiner noted that the
Veteran was taking three medications for hypertension. A stress
test showed a METS of 7.6.  The blood pressure readings during
the test went from 148/85 to 166/94.  The test was terminated due
to fatigue and dyspnea.  The examiner noted that past testing had
not shown any cardiac disease or renal dysfunction.  The blood
pressure was 130/85 and the heart had a regular rate and rhythm.
Laboratory findings included a basic metabolic profile with
normal electrolytes, BUN, and Creatinine.  The diagnosis was
hypertension stable at that time on medications without any
cardiovascular, cerebrovascular, or renal complications secondary
to hypertension.

In October 2008, the Veteran's blood pressure was 136/72.  A
stress test was normal at low functional capacity due to dyspnea.
Hypertension was described as controlled.  In February 2009, the
Veteran's blood pressure was 122/88 and described as controlled.
In May 2009, the Veteran's blood pressure was 150/90 and a new
medication was added.  In June 2009, the blood pressure reading
was 120/82.

On VA examination in September 2009, the Veteran described
frequent headaches and fatigue. The examiner noted the Veteran
had a negative treadmill test in July 2008, a normal cardiac
catherization, and, a Holter monitor was negative for any
significant rhythm disturbance.  The Veteran was on four
medications to control his blood pressure.  The blood pressure
readings were 148/90, 150/92, and 160/100.  The heart had regular
rate and rhythm.  Recent laboratory studies showed normal kidney
function.  The diagnosis was essential hypertension with
suboptimal control on four medications.  There is no evidence of
heart disease or other target organ damage from the hypertension.

In November 2009, the Veteran's blood pressure was 160/92 and his
medication was increased.  About a week later, the blood pressure
readings were 124/98 and 120/98.  In March 2010, blood pressure
was 142/84 and the blood pressure was described as improving. In
April 2010, blood pressure was 154/86 and in May 2010 it was
132/84.

Analysis

Blood Pressure Readings

Before July 12, 2005, the Veteran's hypertension was treated with
medication and resulted in diastolic pressure readings
predominantly at or near 100 and systolic blood pressure was
predominantly less than 160.  With multiple recorded readings of
diastolic pressures in the high 90s or 100, and multiple recorded
readings of systolic less than 160 the disability picture more
nearly approximated the criteria for a 10 percent rating under
Diagnostic Code 7101 and the criteria for the next higher rating,
20 percent, namely, diastolic pressure predominantly 110 or more
or systolic pressure predominantly 200 or more under Diagnostic
Code 7101 had no been met before July 12, 2005.

As for hypertension after July 12, 2005, the evidence, consisting
of VA records and examinations, show that the recorder diastolic
pressure readings were predominantly below 110.

As the criteria for a 40 percent rating are diastolic pressure
predominantly 120 or more, which is not shown the criteria for
the next higher rating, 40 percent, have not under Diagnostic
Code 7101 from July 12, 2005, have not been met.

The Board has considered the statements and arguments of the
Veteran as to the extent of his current disability.  The Veteran
is competent to describe his symptoms and that his symptoms are
worse.  Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in
evaluating a claim for increase, VA must consider the factors as
enumerated in the rating criteria.  Massey v. Brown, 7 Vet. App.
204, 208 (1994).

Although the Veteran argues that the schedular criteria are not
realistic, that VA should rate hypertension on the underlying
severity without medication, and that hypertension requires
changes in medication to control it, the Board is bound by the
applicable laws and regulations promulgated by the VA, which
includes the application of the Rating Schedule, which
encompasses blood pressure readings that are either controlled or
not by medication.  38 U.S.C.A. � 7104(c); 38 C.F.R. � 20.101(a).

Headaches, Dizziness, and Fatigue.

The Veteran asserts that he is entitled to a separating rating
for headaches, dizziness, and fatigue.

Except for Diagnostic Code 8100, migraine headache, there is no
other Diagnostic Code to rate headaches.  It is permissible to
rate a condition under a closely related disease in which not
only the functions affected but the anatomical localization and
symptomatology are closely analogous. 38 C.F.R. � 4.20.

The headaches in this case can be rated by analogy to migraine.
Under Diagnostic Code 8100, the criteria for a 10 percent are
migraine headaches with characteristic prostrating attacks
averaging one in two months over the last several months.

Before July 2005, the Veteran had complained of dull headaches
without any other characteristics, which is insufficient to
support a compensable rating as prostrating attacks under
Diagnostic Code 8100.

After July 12, 2005, on VA examination in January 2006, the
Veteran complained of headaches mainly in the temporal and
frontal areas, which occurred mostly with exertion such as mowing
the lawn or doing yard work, and the headaches were not
debilitating.  On VA examination in July 2007, the Veteran
complained of recurrent headaches almost every day that lasted 20
to 30 minutes and that he could not function and he had to lie
down or sit still.

On VA examination in September 2007, the Veteran complained of
headaches with exertion, which happened about three times a week.
On VA examination in VA examination in September 2009, the
Veteran described frequent headaches.

The record shows that the Veteran has frequent headaches.  And
although the Veteran described headaches such that he could not
function, the record does not contain any objective evidence of
headaches that more nearly approximate prostrating attacks for a
compensable rating under Diagnostic Code 8100.

As for dizziness and fatigue, the symptoms of dizziness and
fatigue are closely analogous to the symptomatology of dizziness
and fatigue under Diagnostic Code 7007 (hypertensive hear
disease).

Under Diagnostic Code 7007, the criteria for a 10 percent rating
are a workload of greater than 7 metabolic equivalents (METs) but
not greater than 10 METs resulting in dyspnea, fatigue, angina,
dizziness, or syncope; or continuous medication is required.
Applied in this case, the rating criteria encompasses the
underlying severity of the disability, that is, hypertension, and
also encompassed symptoms of dizziness and fatigue as part of the
underlying pathology absent a showing of separate pathology, that
is, evidence of other organ damage from hypertension, which is
not shown.  For this reason, a separate rating for either
dizziness or fatigue or both is not warranted.

For these reasons, the preponderance of the evidence is against
rating higher than 10 percent for hypertension before July 12,
2005, and a rating higher than 20 percent for hypertension with
headaches, dizziness, and fatigue from July 12, 2005, and the
benefit-of-the- doubt standard of proof does not apply.  38
U.S.C.A. � 5107(b).

Extraschedular Consideration

While the Board does not have authority to grant an
extraschedular rating in the first instance, the Board does have
the authority to decide whether the claim should be referred to
the VA Director of the Compensation and Pension Service for
consideration of an extraschedular rating. 38 C.F.R. �
3.321(b)(1).

The threshold factor for extraschedular consideration is a
finding that the evidence presents such an exceptional disability
picture that the available schedular rating for the service-
connected disability is inadequate. There must be a comparison
between the level of severity and symptomatology of the service-
connected disability with the established criteria. If the
criteria reasonably describe the Veteran's disability level and
symptomatology, then the disability picture is contemplated by
the Rating Schedule, and the assigned schedular evaluation is,
therefore, adequate, and no referral is required.  Thun v. Peake,
22 Vet. App. 111 (2008).

In this case, the rating criteria reasonably describe the
disability level and symptomatology, which are contemplated by
Diagnostic Code 7101 in the Rating Schedule.  In other words, the
Veteran does not experience any symptomatology not already
encompassed in the Diagnostic Code.

As the disability picture is contemplated by the Rating Schedule,
the assigned schedular ratings are, therefore, adequate.
Consequently, referral for extraschedular consideration is not
required under 38 C.F.R. � 3.321(b)(1).

ORDER

A rating higher than 10 percent for hypertension before July 12,
2005, is denied; and a rating higher than 20 percent for
hypertension with headaches, dizziness, and fatigue from July 12,
2005, is denied.

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

 Department of Veterans Affairs


judge_norm: JOHN E ORMOND, JR

disposition: remanded

text:
Citation Nr: 1101000
Decision Date: 01/10/11    Archive Date: 01/20/11

DOCKET NO.  09-03 001	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma

THE ISSUES

1.  Entitlement to an effective date earlier than July 1, 2008
for the inclusion of J. D. as the Veteran's spouse.

2.  Whether an overpayment of VA compensation benefits in the
amount of $4499.00 was properly created.

REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

B. Berry, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1997 to November
1997.

This matter comes to the Board of Veterans' Appeals (Board) on
appeal from decisions dated in July 2008 by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota
and Muskogee, Oklahoma.

The Veteran requested a travel Board hearing in her January 2009
VA Form 9.  In August 2009, the Veteran requested that her August
2009 Board hearing be rescheduled.  A Veterans Law Judge granted
the Veteran's motion to reschedule her hearing.  However, the
Veteran failed to appear at the rescheduled hearing in December
2010.  As the Veteran has not submitted good cause for failure to
appear to the hearing, the request is deemed withdrawn.  See 38
C.F.R. � 20.704(d) (2010).

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

Historically, the Veteran was in receipt of additional VA
compensation benefits for her dependent spouse, S. L. H.  The RO
proposed to remove S. L. H. as a dependent spouse and her two
children effective December 1, 2005, the last date they were able
to verify dependent status, thereby reducing the Veteran's rate
of compensation as of the same date.  The RO also sent the
Veteran a Declaration of Status of Dependents form and requested
that the Veteran fill it out.  In June 2008, the Veteran returned
the form indicating that there were no changes as she was still
married to J. P. D. and the number of children previously
reported is the same.  Thereafter, in June 2008, the RO removed
S. L. H. as a dependent spouse effective December 1, 2005,
thereby reducing the Veteran's rate of compensation as of the
same date.   In response, the Veteran submitted a completed
Declaration of Status of Dependents form in June 2008 revealing
that she divorced S. L. H. in November 2005 and married J. P. D.
in December 2005.  A July 2008 determination added J. P. D. as a
dependent spouse effective July 1, 2008 and in a separate letter
the Veteran was informed of an overpayment in the amount of
$4,499.

The Veteran has challenged the effective date of July 1, 2008 for
the addition of J. D. P. and the validity of the creation of the
overpayment of VA compensation benefits in amount of $4,499.
Specifically, the Veteran asserts that she notified VA of her
divorce to S. L. H. and her marriage to J. D. P. in December
2005.  In the July 2008 and December 2008 notice of
disagreements, the Veteran asserts that she went to the VA
Hospital in Oklahoma City and disclosed the divorce and marriage
information with a copy of the divorce decree and marriage
certificate to a clerk who was supposed to have made changes in
the records.  The Veteran asked the woman who took the
information if that was all the VA needed and she was assured
that there was nothing else she had to do.

In order to ensure that all due process requirements are fully
satisfied, the Board is of the opinion that a remand is needed to
determine whether the VA Hospital in Oklahoma City received
information of the Veteran's divorce and marriage between
December 2005 and July 2008.

Accordingly, the case is REMANDED for the following action:

1.	Attempt to obtain and associate with the
claims file any information of the
Veteran's divorce from S. L. H. and
marriage to J. D. P. received by the VA to
include copies of the divorce decree,
marriage certificate, a notation in the
Veteran's VA treatment record or a VA form
indicating dependent status between
December 2005 and July 2008.  In
requesting these records, the agency of
original jurisdiction should contact all
appropriate agencies/facilities, including
the VA Hospital in Oklahoma City,
Oklahoma.  Any efforts to obtain these
records should be documented in the claims
file, including any response, negative or
positive.  Requests must continue until
the agency of jurisdiction determines that
the records sought do not exist or that
further efforts to obtain those records
would be futile.

2.	After completion of the above and any
other development deemed necessary, review
the expanded record and determine if the
Veteran has submitted evidence sufficient
to warrant entitlement to the benefits
sought.  Unless the benefits sought on
appeal are granted, the Veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and afforded an opportunity to
respond.

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. 2010).

_________________________________________________
John E. Ormond, Jr.
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) (2010).


judge_norm: BARBARA B COPELAND

text:
Citation Nr: 1102000
Decision Date: 01/18/11    Archive Date: 01/26/11

DOCKET NO.  03-24 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls,
South Dakota

THE ISSUE

Entitlement to service connection for posttraumatic stress
disorder (PTSD).

REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

G. A. Wasik, Counsel

INTRODUCTION

The Veteran had active duty service from April 1975 to November
1975.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a rating decision by a Regional Office (RO) of the
Department of Veterans Affairs (VA).

The issue on appeal was last before the Board in March 2009 when
it was remanded for additional evidentiary development and/or to
cure a procedural defect.

The Veteran testified at a RO hearing in September 2003.

The appeal is REMANDED to the RO.  VA will notify the appellant
if further action is required on his part.

REMAND

When the issue on appeal was last before the Board in March 2009,
it was determined that the directions of a May 2007 Board remand
had not been complied with and the issue was remanded back to the
RO.  The Board noted it had directed the RO to review the claims
file and prepare a summary of the Veteran's claimed stressors
based on review of all pertinent documents and the Veteran's
statements regarding stressors.  This summary, all stressor
statements, DD Form 214 and the Veteran's service personnel
records, along with any other supporting documents, were to be
submitted to the U.S. Army and Joint Services Records Research
Center (JSRRC) to see if any of the Veteran's claimed stressors
can be verified.  The RO did not do this.  The Board noted that,
in the case of Stegall v. West, 11 Vet. App. 268 (1998), the
United States Court of Appeals for Veterans Claims (the Court)
held that a remand by the Board imposes upon the Secretary of the
VA a concomitant duty to ensure compliance with the terms of the
remand.  It was further held that where the remand orders of the
Board are not complied with, the Board errs in failing to insure
compliance.  The Court also noted that its holdings in that case
are precedent to be followed in all cases presently in remand
status.  The Board remanded the issue on appeal back to the RO
for compliance with the prior remand instructions.

The Board's current review of the claims file demonstrates that
the RO still has not complied with the Board's two prior remand
instructions.  There is no evidence in the claims file
documenting that the RO prepared a summary of the Veteran's
claimed stressors based on review of all pertinent documents and
the Veteran's statements regarding stressors.  There is no
indication that this summary, all stressor statements, DD Form
214 and the Veteran's service personnel records, along with any
other supporting documents, were submitted to the JSRRC as twice
directed by the Board.  Unfortunately, the issue on appeal must
again be remanded for the actions set forth below.

Additionally, the Board notes that a private medical statement
was submitted in November 2010 which provides an opinion linking
PTSD to the Veteran's alleged stressors.  While the opinion links
PTSD to active duty, it is based, almost solely, on the Veteran's
self-reported military history which the Board notes is
manifested by numerous inconsistencies.  The Board finds that
this evidence is insufficient upon which to base a grant of
service connection for PTSD at the present time.

Accordingly, the case is REMANDED for the following action:

1.  Review the claims file and prepare a
summary of the claimed stressors based on
review of all pertinent documents and the
Veteran's statements regarding stressors.
This summary, all stressor statements, DD
Form 214 and the Veteran's service personnel
records, along with any other supporting
documents, should be submitted to the U.S.
Army and Joint Services Records Research
Center (JSRRC), at 7701 Telegraph Road,
Kingman Building, Room 2C08 Alexandria, VA
22315-3802, for verification.  Any additional
development recommended by that office should
be accomplished by the RO.

2.  Then review the file and make a formal
determination with respect to whether a
claimed stressor or stressors has/have been
verified.  In reaching this determination,
the RO should address any credibility
questions raised by the record.

3.  Thereafter, if and only if the evidence
corroborates any claimed in-service stressor,
the Veteran should be afforded a VA
psychiatric examination.  The claims file and
a list of the stressor(s) found to be
corroborated by the evidence must be provided
to the examiner for review.  All findings
should be reported in detail.  Any further
indicated special studies, including any
appropriate psychological tests, should be
conducted.  The examiner should review the
results of any testing prior to completion of
the examination report.  The examiner should
clearly indicate whether the Veteran has PTSD
due to military service.  The examiner should
be instructed that only the verified events
listed by the RO may be considered as
stressors for use in a diagnosis of PTSD.
The examiner should utilize the DSM-IV in
arriving at a diagnosis of PTSD.  If PTSD is
diagnosed, the examiner must explain whether
and how each of the diagnostic criteria is or
is not satisfied.  Also, if PTSD is
diagnosed, the examiner must identify the
stressor(s) supporting the diagnosis.  The
examiner should also address the findings of
the private medical opinion submitted in
November 2010.

4.  After undertaking any additional
development which is deemed necessary, review
the expanded record and determine whether the
benefit sought can be granted.  If the issue
remains denied, the Veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond.  Thereafter, the case should be
returned to the Board for appellate review.

The appellant and his representative have 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. 2009).

_________________________________________________
BARBARA B. COPELAND
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) (2009).


judge_norm: M E LARKIN

condition: radiculopathy

text:
Citation Nr: 1103000
Decision Date: 01/24/11    Archive Date: 02/01/11

DOCKET NO.  05-01 010	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to assignment of a separate evaluation for
radiculopathy of the left lower extremity as apart from
evaluation of lumbar spine degenerative disc disease (to include
whether restoration of service connection for left leg
radiculopathy is warranted).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

April Maddox, Counsel

INTRODUCTION

The Veteran had active duty from June 1972 to June 1976.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from April 2003 and October 2007 rating decisions
issued by the Department of Veterans Affairs (VA) Regional Office
(RO) in Portland, Oregon.

In his October 2003 notice of disagreement the Veteran requested
an RO hearing.  An RO hearing was scheduled for November 2004 and
the Veteran was provided notice of this hearing in September
2004.  However, the Veteran failed to report to the scheduled
hearing and failed to explain his absence.   The Veteran
indicated on his December 2008 VA Form 9 that he wished to
testify at a Board hearing.  A Travel Board hearing was scheduled
for March 2009 and the Veteran was provided notice of this
hearing in January 2009.  However, the Veteran failed to report
to the scheduled hearing and failed to explain his absence.
Therefore, the Board and RO hearing requests are considered
withdrawn.  See 38 C.F.R. � 20.704(d) (2010).

This case was previously before the Board in June 2009 at which
time the issue addressed above was remanded for further
development.  The Board is satisfied that there has been
substantial compliance with the remand directives and the Board
may proceed with review.  Stegall v. West, 11 Vet. App. 268
(1998).

FINDINGS OF FACT

1.  At the time of a March 1999 rating decision, the Veteran was
service-connected for degenerative disc disease, L5-S1, evaluated
as 20 percent disabling.

2.  In a March 1999 rating decision, the RO considered a February
1999 VA orthopedic examiner's opinion that the Veteran suffered
from left lower extremity radiculopathy and numbness as related
to his service-connected back disorder and recharacterized the
Veteran's previously service-connected disorder as degenerative
joint disease, degenerative disease lumbosacral spine with left
lower extremity radiculopathy and numbness and continued the
previously assigned 20 percent disability rating.  The RO, in
effect, granted service connection for left leg radiculopathy.

3.  In a May 2000 rating decision the RO found that the Veteran
did not suffer from left leg radiculopathy and instead suffered
from left lower extremity meralgia paresthetica.  The RO denied
service connection for left lower extremity meralgia paresthetica
and amended the description of the Veteran's low back disorder by
removing the left leg symptomatology from "degenerative joint
disease, lumbosacral spine with left extremity radiculopathy and
numbness."  The previously assigned 20 percent disability rating
was, once again, continued.

4.  The evidence of record establishes that the award of service
connection for left leg radiculopathy in March 1999 was clearly
and unmistakably erroneous.

CONCLUSIONS OF LAW

1.  The criteria for assignment of a separate evaluation for
radiculopathy of left lower extremity as apart from evaluation of
lumbar spine degenerative disc disease are not met.  38 U.S.C.A.
�� 1110, 1131, 5107 (West 2002); 38 C.F.R. � 3.303 (2010).

2.  The grant of service connection for radiculopathy of left
lower extremity was clearly and unmistakably erroneous, and
severance of service connection was proper. 38 U.S.C.A. �� 1110,
1131, 5112 (West 2002); 38 C.F.R. �� 3.103, 3.105, 3.303, 3.307,
3.309, 3.310 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

Service treatment records show that the Veteran was treated for
back pain on several occasions during military service.  He
submitted a claim for service connection for a back disorder in
April 1978.  By rating decision dated in August 1979, the RO
granted service connection for degenerative disc disease, L5-S1,
assigning a 10 percent disability rating from August 28, 1979,
the date of the Veteran's claim.

In December 1998, the Veteran submitted a claim for an increased
rating for his lumbar spine disorder.  The Veteran also submitted
an original claim for service connection for a left leg disorder
secondary to his service-connected lumbar spine disorder.  By
rating decision dated in January 1999 the RO increased the
Veteran's disability rating for the lumbar spine from 10 percent
to 20 percent, effective December 4, 2008.  The RO also noted
that the Veteran was to be scheduled for an immediate orthopedic
examination to identify and describe any additional impairment.

A February 1999 VA orthopedic examination noted the Veteran did
not have any radicular symptoms, "as such," but complained of
achy pain in the lateral aspect of the left leg as well as
numbness in the left calf and thigh.  The diagnosis was
degenerative joint and disc disease of L4-5, with left lower
extremity radiculopathy.

In a March 1999 rating decision, which adjudicated the December
1998 claim, the RO included left leg radiculopathy with the
Veteran's degenerative disc disease, L5-S1 and continued a 20
percent disability rating.

Subsequently, in a May 2000 rating decision the RO found that the
Veteran did not suffer from left leg radiculopathy; rather, the
Veteran had left lower extremity meralgia paresthetica.
Specifically, the RO referred to a September 1999 VA
neurosurgical consultation which included the opinion that the
Veteran's symptoms were more consistent with meralgia (pain in
the thigh) and paresthetica (a disease marked by an abnormal
touch sensation, such as burning or prickling, pain, and
numbness) in the outer surface of the thigh, in the region
supplied by the lateral femoral cutaneous nerve, due to
entrapment of the nerve at the inguinal ligament.  The September
1999 VA neurosurgeon noted that this was typically secondary to
traumatic injury to the lateral femoral cutaneous nerve and the
Veteran denied any specific injury to his groin region.  A
subsequent October 1999 VA neurosurgeon's opinion stated that the
Veteran's back symptomatology and left thigh symptomatology were
not connected.  The October 1999 VA neurosurgeon noted that the
lateral femoral cutaneous nerve was entirely sensory, originating
from the second and third lumbar roots, and has a long route
through the pelvis and into the anterior left leg through the
inguinal canal.  The neurosurgeon further commented that
idiopathic lateral femoral cutaneous neuropathy is fairly common,
it is rare to find a cause, and is extremely difficult to treat.
In the May 2000 rating decision, the RO denied service connection
for left lower extremity meralgia paresthetica and amended the
description of the service-connected back disability by removing
the left leg radiculopathy symptomatology.

In August 2002 the Veteran submitted a claim for a separate
evaluation for his lumbar spine and left leg numbness.  In
connection with this claim the Veteran submitted a March 2003
statement from Dr. C.S.P. whereby a diagnosis of bilateral
meralgia paresthetica was continued.  Dr. C.S.P. also noted that
a previous EMG was normal (denoting no evidence of radiculopathy)
and also opined that the Veteran's bilateral meralgia
paresthetica was unrelated to his in-service injury to the spine.
An April 2003 VA examination report also shows a continued
diagnosis of meralgia paresthetica of the left leg.

By rating decision dated in April 2003, the RO continued the
previously assigned 20 percent evaluation for the Veteran's
degenerative disc disease, L5-S1 and denied a separate evaluation
for the claimed left leg radiculopathy.  Thereafter, the Veteran
perfected an appeal.

In June 2009, the Board remanded the issue addressed in this
decision and expanded it to include whether restoration of
service connection for left leg radiculopathy is warranted.

Pursuant to the Board remand, the Veteran was afforded a VA
peripheral nerve examination in July 2010.  At that time the
examiner noted a February 2008 EMG (electromyography) report
which was consistent was bilateral meralgia paresthetica.  It was
noted that there was no evidence of lumbar radiculopathy.  Upon
physical examination, the examiner diagnosed lateral femoral
cutaneous neuropathy of the bilateral thighs.  The examiner noted
that the Veteran's history and records were consistent with his
lateral femoral cutaneous nerve symptomatology.  The examiner
also indicated that he could not locate any history of
radiculopathy or leg pain sensory changes or motor changes
related to the Veteran's service-connected lumbar spine
degenerative disk disease.

Analysis

1.	Separate evaluation for radiculopathy of the left lower
extremity as apart from evaluation of lumbar spine
degenerative disc disease

The Veteran's service-connected degenerative disc disease is
currently evaluated under the General Rating Formula for Diseases
and Injuries of the Spine.  38 C.F.R. � 4.71a, Diagnostic Code
(DC) 5237-5243.  The notes to the rating formula state that any
associated objective neurological abnormalities, including, but
not limited to, bowel or bladder impairment, are to be rated
separately, under an appropriate diagnostic code. 38 C.F.R. �
4.71a, Note (1).

Although the February 1999 orthopedic examination included a
diagnosis of radiculopathy, numerous neurological examinations
conducted thereafter show that the Veteran does not have
radiculopathy of the left lower extremity.  Rather, the evidence
shows that the Veteran has repeatedly been diagnosed with left
lower extremity meralgia paresthetica which has not been related
to the service-connected low back disability and for which a
separate grant of service connection has been denied.  As there
is no diagnosis of radiculopathy of the left lower extremity or
other associated objective neurological abnormality, assignment
of a separate evaluation for radiculopathy of left lower
extremity is not warranted.

2.	 Restoration of service connection for left leg
radiculopathy

In effect, the RO granted service connection for left leg
radiculopathy in the March 1999 rating decision.  Once service
connection has been granted, it can be severed only upon VA's
showing that the grant of service connection was clearly and
unmistakably erroneous.  38 C.F.R. � 3.105(d); see also
Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v.
Gober, 10 Vet. App. 474, 478 (1997).

Clear and unmistakable error (CUE) is a very specific and rare
kind of error.  It is the kind of error in fact or law that, when
called to the attention of later reviewers, compels the
conclusion, to which reasonable minds could not differ, that the
result would manifestly have been different but for the error.
Generally, the correct facts, as they were known at the time,
were not before the RO, or the statutory and regulatory
provisions extant at the time were incorrectly applied.  Even
when the premise of error is accepted, if it is not absolutely
clear that a different result would have ensued, the error
complained of cannot be ipso facto clear and unmistakable.  Fugo
v. Brown, 6 Vet. App. 40 (1993), citing Russell v. Principi, 3
Vet. App. 310 (1992).

The error must be undebatable and of the sort that, had it not
been made, would have manifestly changed the outcome at the time
it was made.  See Damrel v. Brown, 6 Vet. App. 242 (1994).

When VA seeks to sever service connection, the provisions of 38
C.F.R. � 3.105(d) impose the same burden of proof that is placed
on a claimant who, pursuant to 38 C.F.R. � 3.105(a), seeks to
have an unfavorable decision overturned, except that in making
the determination of whether severance of service connection is
proper, the review of the record is not limited to evidence that
was before the RO at the time the original adjudication was made.
See 38 C.F.R. � 3.105(d); Baughmann v. Derwinski, 1 Vet. App. 563
(1991); Stallworth, 20 Vet. App. at 488; Daniels, 10 Vet. App. at
480.

Accordingly, to determine whether CUE was present in a prior
decision, either the correct facts, as they were known at the
time, must not have been before the adjudicator (i.e., more than
a simple disagreement of how the facts were applied) or the
statutory and regulatory provisions extant at the time must have
been incorrectly applied.

When severance of service connection is warranted, a rating
proposing severance will be prepared setting forth all material
facts and reasons.  The veteran will be notified at his or her
latest address of record of the contemplated action and furnished
detailed reasons therefore and will be given 60 days for the
presentation of additional evidence to show that service
connection should be maintained.  38 C.F.R. �� 3.103(b)(2),
3.105(d).

In this case, the RO did not follow the procedures under 38
C.F.R. � 3.105 when it severed service connection for left lower
extremity radiculopathy in March 2000.  Generally, where the RO
reduces a veteran's disability rating without implementing these
procedural guarantees, the reduction action is void ab initio.
See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Kitchens v.
Brown, 7 Vet. App. 320, 325 (1995).  Here, however, as the March
2000 RO rating decision continued the previously assigned 20
percent disability rating for the lumbar spine, the provisions of
38 C.F.R. � 3.105(e) do not apply.  See Stelzel v. Mansfield, 508
F.3d 1345 (Fed. Cir. 2007) (holding that VA was not obligated to
provide a veteran with sixty days notice before making a
disability rating decision effective if the decision did not
reduce the overall compensation paid to the veteran).

The medical evidence includes a February 1999 VA orthopedic
examiner's notation that the Veteran did not have radicular
symptoms "as such," but diagnosed left lower extremity
radiculopathy; a September 1999 VA neurological consultation that
found the Veteran's symptoms were more consistent with meralgia
and paresthetica; an October VA neurosurgical opinion that the
Veteran's left thigh symptomatology was not related to his back
and a March 2003 private physician's opinion that bilateral
meralgia paresthetica was unrelated to the back.

The Board finds that the evidence of record reflects that the
Veteran does not have left lower extremity radiculopathy.  The
diagnosis made in February 1999 was offered after the orthopedic
examiner noted the Veteran did not have any radicular symptoms
and subsequent neurological consultations confirmed the lack of
radiculopathy and attributed the complaints to meralgia
paresthetica, a condition which was determined to be unrelated to
service and to the service-connected back disability.  The grant
of service connection for radiculopathy of the left lower
extremity, therefore, constituted clear and unmistakable error.
Accordingly, the Board is compelled to conclude that the
severance of service connection for radiculopathy of the left
lower extremity was, in fact, proper.

Notice and Assistance

Upon receipt of a complete or substantially complete application
for benefits and prior to an initial unfavorable decision on a
claim by an agency of original jurisdiction, VA is required to
notify the appellant of the information and evidence not of
record that is necessary to substantiate the claim.  See 38
U.S.C.A. � 5103(a); 38 C.F.R. � 3.159; Pelegrini v. Principi, 18
Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183
(2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
The notice should also address the rating criteria or effective
date provisions that are pertinent to the appellant's claim.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

For an increased-compensation claim, section 5103(a) requires, at
a minimum, that the Secretary (1) notify the claimant that to
substantiate a claim, the claimant must provide, or ask the
Secretary to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment; (2)
provide examples of the types of medical and lay evidence that
may be obtained or requested; (3) and further notify the claimant
that "should an increase in disability be found, a disability
rating will be determined by applying relevant [DC's]," and that
the range of disability applied may be between 0% and 100%
"based on the nature of the symptoms of the condition for which
disability compensation is being sought, their severity and
duration, and their impact upon employment."  Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.
Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

With regard to the issue of entitlement to assignment of a
separate evaluation for radiculopathy of the left lower extremity
as apart from evaluation of lumbar spine degenerative disc
disease, substantially compliant notice was sent in February
2003, August 2008, and July 2010 letters and the claim was
readjudicated in a September 2010 supplemental statement of the
case.  Mayfield, 444 F.3d at 1333.

With regard to the question of severance, the appeal does not
arise from adjudication of a claim made by the appellant; rather
it arises from a severance of service connection by the RO.
Therefore, it arises from action initiated by the RO, not the
appellant.  As discussed, severance of service connection
requires compliance with particular notification procedures under
the law not applicable in this case.  The law requires that the
duty to notify is satisfied and that claimants are given the
opportunity to submit information and evidence in support of
their claims or, in this case, relevant to the proposed
severance.  Once this has been accomplished, all due process
concerns have been satisfied.  Bernard v. Brown, 4 Vet. App. 384
(1993).

The record shows that the appellant was represented by a
Veteran's Service Organization and its counsel throughout the
adjudication of the claims.  Overton v. Nicholson, 20 Vet. App.
427 (2006).  In numerous written arguments, the Veteran's
representative has demonstrated actual knowledge of the
information and evidence necessary to substantiate the claims
decided herein.

VA has obtained service treatment records, assisted the appellant
in obtaining evidence, afforded the appellant physical
examinations and obtained medical opinions as to the etiology and
severity of disabilities.  All known and available records
relevant to the issues on appeal have been obtained and
associated with the appellant's claims file; and the appellant
has not contended otherwise.

VA has substantially complied with the notice and assistance
requirements and the appellant is not prejudiced by a decision on
the claim at this time.

ORDER

A separate evaluation for radiculopathy of the left lower
extremity as apart from evaluation of lumbar spine degenerative
disc disease is not warranted.

Severance of service connection for radiculopathy of left lower
extremity was proper and the appeal is denied.

____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: THOMAS J DANNAHER

text:
Citation Nr: 1105000
Decision Date: 02/07/11    Archive Date: 02/14/11

DOCKET NO.  08-39 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Entitlement to service connection for a dental disability for
compensation purposes.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel

INTRODUCTION

The Veteran served on active duty from October 1967 to September
1969.

This matter comes to the Board of Veterans' Appeals (Board) from
a December 2007 rating decision of a Department of Veterans
Affairs (VA) Regional Office (RO).  A notice of disagreement was
filed in July 2008, a statement of the case was issued in
November 2008, and a substantive appeal was received in December
2008.  The Veteran was scheduled to attend a Board hearing in
April 2010; however, cancelled such request in March 2010.  This
matter was remanded in September 2010.

FINDING OF FACT

The Veteran's dental problems are not as a result of trauma in
service, nor was he a prisoner of war.

CONCLUSION OF LAW

Dental disability was not incurred in or aggravated by the
Veteran's active duty service.  38 U.S.C.A. �� 1110, 5107 (West
2002 and West Supp. 2010); 38 C.F.R. �� 3.102, 3.159, 3.303,
3.381 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107 and 5126;
see also 38 C.F.R. �� 3.102, 3.156(a), and 3.326(a), VA has a
duty to notify the claimant of any information and evidence
needed to substantiate and complete a claim, and of what part of
that evidence is to be provided by the claimant and what part VA
will attempt to obtain for the claimant.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).

The United States Court of Appeals for Veteran Claims' (Court's)
decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held,
in part, that a VCAA notice, as required by 38 U.S.C.A. �
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on a
claim for VA benefits.  This decision has since been replaced by
Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the
Court continued to recognize that typically a VCAA notice, as
required by 38 U.S.C.A. � 5103(a), must be provided to a claimant
before the initial unfavorable agency of original jurisdiction
(AOJ) decision on a claim for VA benefits.

Pursuant to the September 2010 Remand, a VCAA letter was issued
to the Veteran in September 2010.  While such letter did not
predate the rating decision, such letter did notify the Veteran
of what information and evidence is needed to substantiate his
claim, as well as what information and evidence must be submitted
by the claimant, what information and evidence will be obtained
by VA, and the types of evidence necessary to establish an
increased rating and effective date.  Id.; but see VA O.G.C.
Prec. Op. No. 1-2004 (Feb. 24, 2004); see Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).  Despite initial inadequate
notice provided to the Veteran, the Board finds no prejudice to
him in proceeding with the issuance of a final decision.  See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board
addresses a question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
appellant has been prejudiced thereby). Since the Board concludes
below that the preponderance of the evidence is against
entitlement to service connection, any questions as to the
appropriate disability rating and effective date to be assigned
are rendered moot.

The Veteran has received all essential notice, has had a
meaningful opportunity to participate in the development of his
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 not demonstrated any
prejudice with regard to the content of any notice.  See Shinseki
v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law
imposing a presumption of prejudice on any notice deficiency, and
clarifying that the burden of showing that an error is harmful,
or prejudicial, normally falls upon the party attacking the
agency's determination.)  See also Mayfield v. Nicholson, 444
F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Board also finds that VA has complied with all assistance
provisions of VCAA, to include substantial compliance with the
instructions in the September 2010 Board Remand.  D'Aries v.
Peake, 22 Vet. App. 97, 105 (2008).  The evidence of record
contains the Veteran's service treatment records and post-service
treatment records.  This matter was remanded to obtain private
medical records from Dr. Lowe in Crescent City.  The VCAA letter
requested that the Veteran complete a VA Form 21-4141,
Authorization and Consent to Release Information; however, the
Veteran did not respond.  While VA has a duty to assist the
Veteran in the development of his claim, the Veteran has a duty
to cooperate with VA.  See Wood v. Derwinski, 1 Vet. App. 190
(1991).  The law also provides that a claimant for VA benefits
has the responsibility to present and support the claim.  38
U.S.C. � 5107(a).  The Board concludes that it has satisfied its
duty to assist and in light of the Veteran's failure to respond
there is no remaining duty under the VCAA to attempt to obtain
the medical records.  There is otherwise no indication of
relevant, outstanding records which would support the Veteran's
claim.  38 U.S.C.A. � 5103A(c); 38 C.F.R. � 3.159(c)(1)-(3).  As
the evidence does not establish competent evidence that the
Veteran's claimed dental disability was incurred in or due to
trauma in service, it is not necessary to obtain a VA medical
examination or opinion.  38 U.S.C.A. � 5103A(d); 38 C.F.R. �
3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79
(2006).

For all the foregoing reasons, the Board concludes that VA's
duties to the Veteran have been fulfilled with respect to the
issue in appellate status.

Criteria & Analysis

Applicable law provides that service connection will be granted
if it is shown that the veteran suffers from disability resulting
from an injury suffered or disease contracted in line of duty, or
for aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or air
service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  That an injury
occurred in service alone is not enough; there must be chronic
disability resulting from that injury.  If there is no showing of
a resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to support
a finding of chronicity.  38 C.F.R. � 3.303(b).  Service
connection may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service.
38 C.F.R. � 3.303(d).

Treatable carious teeth, replaceable missing teeth, dental or
alveolar abscesses and periodontal disease will be considered
service connected solely for the purpose of establishing
eligibility for outpatient dental treatment as provided in �
17.161 of this chapter, but not for purposes of compensation.
See 38 C.F.R. � 3.381(a).

The Veteran claims entitlement to service connection for dental
condition, to include periodontal disease, gum disease, cavities,
root canals, implants and related dental problems.  The Veteran
claims that he should be compensated for such dental disabilities
as such conditions manifested in service.  Specifically, the
Veteran contends that a Vietnamese dentist performed dental work
on his teeth and he experienced pain.

Service treatment records contain a 'Dental' record which
reflects that he underwent a dental examination at Fort Sill in
October 1968, specifically "Type 3 Re-exam."  A 'Health Record
- Abstract of Service' reflects 'Medical and Dental Activity'
including treatment at the 'Dental Clinic #4' in October 1967,
'Dental Clinic #1' at Fort Sill from January 1968 to October
1968, and treatment in February 1969.  No reference is made to
treatment by a Vietnamese dentist.  On a September 1969 Report of
Medical History completed by the Veteran, he checked the 'No' box
for 'severe tooth or gum trouble.'  The September 1969 Report of
Medical Examination conducted for separation purposes reflects
that teeth numbers 32, 25, 16, and 17 were restorable teeth.  The
examiner noted "CL-3" with regard to 'Remarks and Additional
Dental Defects and Diseases.'  There is no indication that the
Veteran's in-service dental treatment was anything but routine in
nature.

While service connection may be established for treatment
purposes for these conditions, the regulations listed above
clearly prohibit service connection for purposes of compensation
where the disability involves replaceable missing teeth or
periodontal disease.  38 C.F.R. � 3.381.  As neither condition is
recognized by the applicable regulations as a disability for
which VA compensation may be granted, the veteran's claim is not
warranted.  See 38 C.F.R. � 3.381 (periodontal disease is not a
disability for compensation purposes).  Service treatment records
do not reflect that any dental treatment rendered during service
was due to any in-service trauma, nor due to combat, nor does the
Veteran allege any trauma to the teeth, other than experiencing
pain when a Vietnamese dentist rendered treatment.  Additionally,
there is no evidence that the Veteran was a prisoner of war.  See
38 C.F.R. � 3.381(b).  The only dental treatment rendered was for
periodontal disease and carious teeth.  Service connection for
periodontal disease for compensation purposes is not legally
permitted, and to that extent, as a matter of law this claim must
be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

As noted, there was no evidence of any in-service dental trauma
which resulted in residuals, additional loss of teeth, malunion
or nonunion of the maxilla, or loss of body of the maxilla or
mandible.  See generally, VAOPGCPREC 5-97; 38 C.F.R. 4.150,
Diagnostic Codes 9913-9916.  Consequently, there is no basis for
entitlement to service connection for residuals of dental
condition for compensation purposes.

The Veteran may wish to contact the VA dental clinic for further
information regarding outpatient dental treatment.

ORDER

Entitlement to service connection for dental disability is
denied.

____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs