judge_norm: HARVEY P ROBERTS

text:
��Citation Nr: 19109000

Decision Date: 02/05/19	Archive Date: 02/05/19

DOCKET NO. 17-28 789

DATE:	February 5, 2019

ORDER

Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to April 25, 2014, is denied.

Entitlement to a 70 percent rating, but not higher, for PTSD as of April 25, 2014, but not earlier, is granted.

Entitlement to a rating in excess of 70 percent for PTSD as of April 25, 2014, is denied.

Entitlement to an earlier effective date of April 25, 2014, but not earlier, for a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. Prior to April 25, 2014, the Veteran s PTSD was manifested by symptoms productive of no more than occupational and social impairment with reduced reliability and productivity.

2. As of April 25, 2014, PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, but not total social impairment.

3. The Veteran s service-connected disability has precluded substantially gainful employment since April 25, 2014, but not earlier.

CONCLUSIONS OF LAW

1. Prior to April 25, 2014, the criteria for an initial rating higher than 50 percent for PTSD have not been met or more nearly approximated.  38 U.S.C. �� 1155, 5103, 5103A; 38 C.F.R. �� 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411.

2. As of April 25, 2014 the criteria for a rating of 70 percent, but not higher, for PTSD are not met.  38 U.S.C. �� 1155, 5103, 5103A; 38 C.F.R. �� 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411.

3. The criteria for an effective date prior to April 25, 2014, for TDIU are not met. 38 U.S.C. �� 5110, 5107; 38 C.F.R. � 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1963 to December 1966.  This matter comes before the Board of Veterans  Appeals (Board) from a July 2013 and November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

1.	Entitlement to increased ratings for PTSD

Disability ratings are determined by the application of VA s Schedule for Rating Disabilities.  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 service and the residual conditions in civil occupations.  38 U.S.C. � 1155; 38 C.F.R. �� 3.321(a), 4.1.

The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 C.F.R. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Psychiatric disabilities are rated using the General Rating Formula for Mental Disorders.  38 C.F.R. � 4.130, General Rating Formula for Mental Disorders.

A 30 percent rating is warranted for a mental disorder when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. � 4.130.

A 50 percent rating is warranted for a mental disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. � 4.130.

A 70 percent rating is warranted for a mental disorder when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.  38 C.F.R. � 4.130.

A 100 percent rating is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name.  38 C.F.R. � 4.130.

The symptoms listed in the General Rating Formula are examples, not an exhaustive list, and it is not required to find the presence of all, most, or even some of the enumerated symptoms.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran s occupational and social impairment, rather than on the presence or absence of particular symptoms listed in the schedular criteria.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

The Veteran contends that the disability ratings assigned for PTSD do not accurately compensate the severity of the disability.  The present claim for an increased rating arises from service connection for PTSD that was originally established in a May 2016 rating decision.  The Veteran is assigned a 50 percent rating, effective July 20, 2012, and a 70 percent rating, effective August 1, 2017.

At the December 2012 VA examination, the Veteran reported that in service he worked with pilots to put on their masks and helmets, and that he was often the last person to see them alive.  He felt guilty that pilots died during the war.  The Veteran was also aboard a plane that caught fire and it landed safely.  He did not have any injuries but he was scared.  The Veteran stated that had a Ph.D. in Forest Genetics, taught at local universities, and he continued to teach courses at a theology school.  He reported that had been married since 1967.  He had four children, several grandchildren, and great-grandchildren.  His relationship with his wife was strained because she was diagnosed as bipolar.  The examiner did not diagnose any psychiatric disabilities.

An April 25, 2014, private evaluation, received by VA on May 7, 2014, conducted by an MA/LPA, and counter-signed by a psychologist, notes that the Veteran had symptoms after service, including intrusive thoughts, nightmares, avoidance, hypervigilance, hyperirritability, problems with memory and concentration, and an exaggerated startle response.  The Veteran expressed remorse about his time in service and he reported that questioned whether he did his job correctly since many pilots died.  The Veteran presented agitated at the examination.  The examiner opined the Veteran s service experiences were related to symptoms of PTSD.  The Veteran reported that he did not have any friends and he preferred to be alone.  He denied suicidal or homicidal ideation. The examiner opined that hyperirritability severely compromised the Veteran s ability to initiate or sustain work relationships.  Based on the severity of the symptoms, the examiner determined that the symptoms caused significant disturbances in all areas of his life and considered him totally and permanently disabled.

At a September 2015 VA examination, the Veteran reported that he flew equipment to Vietnam and that was terrified for his life due to the high threat of enemy attack.  He identified several symptoms, including re-experiencing trauma, avoidance reactions, hyperarousal, hypervigilance, elevated startle response, sleep difficulties, trouble concentrating, pessimism, anhedonia, and isolation.  The Veteran denied suicidal and homicidal ideation.  The examiner noted symptoms of depressed mood, anxiety, suspiciousness, frequent panic attacks, chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective relationships.  On examination, his affect was flat, and the examiner noted his judgment, thought content and processing, and insight were intact.  The examiner reported the Veteran did not have any stressors before or after service that would have caused a PTSD reaction.  The examiner opined that the PTSD symptoms resulted in social and occupational impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational functions only during periods of significant stress, or the symptoms controlled by medication.

In a June 2016 private evaluation, the Veteran reported that he had nightmares.  He did not like to socialize with other Veterans because he felt pressured to discuss his war experiences.  The examiner noted that the Veteran had severe headaches that impacted memory and concentration.  The examiner considered the Veteran permanently disabled.

At an August 1, 2017, VA examination, the Veteran reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation.  The Veteran reported that his wife recently died of cancer.  The Veteran frequently saw his children but not his grandchildren.  He had a couple of acquaintances.  The Veteran did not like to be in crowded places and he preferred to be alone.  He did not have any leisure activities, but went to the gym occasionally.  The Veteran reported that his startle response negatively affected his relationship with his children.  The Veteran stated that he had suicidal thoughts off and on for years but he did not tell anyone out of concern for the consequences of disclosing.  He reported that he did not have a timeline or an intent to commit suicide.  On examination, he presented anxious, suspicious, guarded, and with poor insight. The Veteran had difficulty reporting his symptoms because he felt ashamed of them and uncomfortable sharing that information.  The examiner opined that the PTSD symptoms did not result in total social and occupational impairment, but that PTSD signs and symptoms resulted in deficiencies in most areas, work, school, family relations, judgment, thinking, or mood.

In an August 2017 private evaluation, the Veteran reported that his symptoms interfered with all areas of his life.  He continued to have chronic headaches that impacted memory and concentration.

Based upon the VA examination reports, VA medical records, and private medical records, the Board finds that the criteria for a 50 percent rating for PTSD were more nearly approximated from the date service connection was established on July 20, 2012, to April 25, 2014, as the Veteran is shown to have had occupational and social impairment with reduced reliability and productivity during that period.  The Board finds that the Veteran s psychiatric symptoms more nearly approximated a condition that was productive of no more than occupational and social impairment with reduced reliability and productivity, as noted by the December 2012 VA examiner.

As of April 25, 2014, the Board finds that the symptoms more nearly approximated as 70 percent rating, but did not at any time meet the criteria for a 100 percent rating for PTSD.  While the April 25, 2014, private examination found that the Veteran was totally disabled, the evidence did not show total social impairment, which is also required for a higher 100 percent rating.  The narrative of that examination did show deficiencies in most areas due to the psychiatric disability, to include social and occupational.  The Board notes that a 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  38 C.F.R. � 4.130.

The Board acknowledges the April 2014 and August 2017 private examiner evaluation of being permanently disabled.  However, the examiner did not provide a rationale for the opinion or relate it solely to the psychiatric disability.  The diagnoses recited in the report include several other disabilities.  While the Veteran has difficulty in social relationships and had suicidal ideation at times, the Veteran maintained close relationships with his with all four of his children and was married to his wife for over 45 years.  Therefore, despite the finding of the examiner, the Veteran does not display total occupational and social impairment, as is required for the assignment of a 100 percent schedular rating.  Bankhead v. Shulkin, 29 Vet. App. 10 (2017).

The Board finds that the criteria for the next higher 100 percent rating are not demonstrated by the evidence of record, as the Veteran s PTSD is not manifested by total occupational and social impairment, due to such symptoms as: gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.

The Board has considered the Veteran s statements regarding the severity of PTSD.  The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  Ultimately, however, the opinions and observations of the Veteran do not meet the burden for higher ratings imposed by the rating criteria under 38 C.F.R. � 4.130 with respect to determining the severity of service-connected PTSD.

Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 50 percent from July 20, 2012, to April 25, 2014, and greater than 70 percent as of April 25, 2014.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. � 5107; 38 C.F.R. � 3.102.

2.	Entitlement to an earlier effective date for TDIU.

The Veteran is seeking an effective date prior to August 1, 2017, for TDIU.  The Veteran contends that he became too disabled to work in October 1997.

A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim.  Hurd v. West, 13 Vet. App. 449 (2000).  Also, because a claim for increased rating for PTSD was pending, and the Veteran is assumed to be seeking the highest possible rating, the TDIU claim has been pending since service connection was established for PTSD.

In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later.  38 U.S.C. � 5110(a), (b)(2); 38 C.F.R. � 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997).

Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C. � 5110(a); 38 C.F.R. � 3.400(o)(1).  The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date.  38 U.S.C. � 5110(b)(2); 38 C.F.R. � 3.400(o)(2).

Total disability ratings are authorized for any service-connected disability or combination of service-connected disabilities, provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of the service-connected disabilities. If there is only one service-connected disability, it must be rated at least 60 percent. If there are two or more disabilities, at least one must be rated at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent.  38 C.F.R. �� 4.15, 4.16(a).  Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether the threshold minimum rating requirements are met.

In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may be assigned on a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities. 38 C.F.R. � 4.16 (b) (2015).

A November 2017 rating decision established entitlement to TDIU based on a single service-connected disability, PTSD, which increased from 50 percent to 70 percent.  This decision has found that the 70 percent rating was warranted as of April 25, 2014.

Prior to April 25, 2014, the Veteran was only service-connected for PTSD, rated 50 percent.  Therefore, he did not meet the percentage criteria of 38 C.F.R. � 4.16(a) and the Board must consider whether referral for consideration of the assignment of a total rating pursuant to38 C.F.R. � 4.16(b) prior to August 1, 2017, was warranted.

A review of the evidence shows the Veteran filed a formal application for a TDIU in June 2016.  The Veteran noted that his highest level of education was two years of college.  The Veteran reported that he worked for the United States Forestry Service for 25 years.

A November 2012 VA examination found the Veteran had continued to work and taught seminar courses that averaged 10 to 20 hours per week.  The examiner did not diagnose any mental disability.

An April 25, 2014, private evaluation found the Veteran s symptoms caused significant disturbances in all areas of his life and considered him totally and permanently disabled.  The examiner determined the Veteran s hyperirritability severely compromised his ability to initiate or sustain work relationships.

A September 2015 VA examination showed occupation and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational only during periods of significant stress, or; symptoms controlled by medication.  The examiner noted the Veteran stopped working in October 1997.  The Veteran reported that at work, he was agitated around others.

In June 2016, the April 2014 examiner provided an additional opinion.  The examiner again considered the Veteran permanently disabled but no rationale was provided.

The Board finds that the evidence does not show prior to April 25, 2014, that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected psychiatric disability.  The Board notes the Veteran had at least some college education and was a researcher.  The Veteran retired from research work in 1997 but he continued to teach for several years, as noted at the December 2012 VA examination.  That examination did not find the Veteran unemployable due to a psychiatric disability.

Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected PTSD prior to August 1, 2017.  Therefore, the claim must be denied.

Harvey P. Roberts

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	C. Kass, Associate Counsel


series: legacy

judge_norm: JAMES L MARCH

judge_role: Veterans Law Judge

disposition: remanded

condition: respiratory

text:
��Citation Nr: 19110000

Decision Date: 02/07/19	Archive Date: 02/07/19

DOCKET NO. 17-07 479

DATE:	February 7, 2019

REMANDED

Entitlement to service connection for a respiratory disease, including granulomatous disease or residuals thereof, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1982 to April 1996, including service in the Persian Gulf War.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran s claim for service connection for an acute respiratory disease, claimed as lung impairment and restrictive lung disease.

The Veteran contends that due to exposure to burning oil fields, fumes, dust, and other elements while in Southwest Asia, he acquired a respiratory disease.

Medical records from when the Veteran was still in service show that March 1995 X-ray imaging found a node in the chest, leading to an April 1995 CT scan that found  evidence of old granulomatous disease  with  no evidence of active cardiopulmonary disease present.  In April 1995 an internal medicine physician wrote that the Veteran had  pulmonary granulomae, chronic, healed, calcified, inactive.

A medical timeline of record found the Veteran was negative for respiratory system problems in 1996; had normal PFTs in 2001; had a normal PFT study in 2009; had a CT of the chest with contrast in 2014 which found previous granulomatous disease, and another CT in 2015 which found no change over the 2014 imaging.

The Veteran asserts that he has had continuous symptoms including shortness of breath since service.

In July 2018, a VA examiner was asked whether  the old healed granulomatous disease of the lung as likely as not occurred in or [was] caused by military service as noted by the d[iagnosis] and treatment in 1995  and whether  [there are] any current residuals.  Unfortunately, the physician failed to answer whether it was as likely as not that the old healed granulomatous disease of the lung was caused by service. Such evidence is pertinent to establishing the Veteran s service-connection claim, which includes the contention that his service directly caused his condition. Therefore, VA has a duty to fully acquire this evidence which it has undertaken to obtain. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) and Daves v. Nicholson, 21 Vet. App. 46, 52 (2007) ( Due process requires the Secretary to notify the claimant prior to the adjudication of the claim of his inability to obtain evidence he has undertaken to obtain, so that the claimant has a fair and reasonable opportunity to try and secure it or procure alternative evidence at a time when such information will be most useful to the adjudicator. ).

Accordingly, the matter is REMANDED for the following action:

(Continued on the next page)

Obtain an opinion from an appropriate clinician regarding whether the Veteran s granulomatous disease of the lung, regardless of the disease s current activity, was at least as likely as not incurred in or caused by military service, including exposure to burning oil fields, fumes, and/or dust.

James L. March

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Davis, Associate Counsel


judge_norm: DAVID A BRENNINGMEYER

disposition: granted

benefit: reduction

condition: back

text:
��Citation Nr: 19111000

Decision Date: 02/12/19	Archive Date: 02/12/19

DOCKET NO. 17-17 018A

DATE:	February 12, 2019

ORDER

Restoration of a 20 percent rating for degenerative facet and disc disease of the lumbar spine is granted from the date of the reduction, subject to the law and regulations governing the award of monetary benefits.

REMANDED

Entitlement to a rating in excess of 20 percent for degenerative facet and disc disease of the lumbar spine is remanded.

FINDINGS OF FACT

1. A June 2015 rating decision reduced the disability rating for the Veteran s service-connected degenerative facet and disc disease of the lumbar spine from 20 to 10 percent, effective September 1, 2015.

2. The evidence is at least in equipoise as to whether, at the time of the reduction, the Veteran had experienced sustained material improvement in her disability under the ordinary conditions of life and work.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran s favor, the reduction in the rating for degenerative facet and disc disease of the lumbar spine from 20 to 10 percent was not proper.  38 U.S.C. � 1155; 38 C.F.R. �� 3.105(e), 3.344, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from March 1986 to July 1995.  Her decorations include the Army Commendation Medal.

This matter comes to the Board of Veterans  Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

An August 2014 rating decision denied the Veteran s claim for service connection for a bilateral hip condition.  She timely filed a notice of disagreement (NOD) and a substantive appeal as to that denial.  However, a December 2017 rating decision granted service connection for osteoarthritis of both hips.  No NOD was thereafter filed with respect to the assigned ratings or effective date.  Therefore, the prior appeal with respect to that claim has been resolved, and is not before the Board at this time.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of  downstream  issues, such as the compensation level assigned for the disability and the effective date).

Although the Veteran filed an NOD with respect to her claim for service connection for upper back pain, the RO closed the appeal of that issue in April 2017, after the Veteran submitted substantive appeals wherein she expressly limited her appeal to other issues.  Accordingly, that matter is also not before the Board.  See 38 C.F.R. � 20.200.

In an April 2018 submission, the Veteran indicated that she wished to revoke her service organization representation.  She is currently proceeding pro se.

Restoration of a 20 percent rating for degenerative facet and disc disease of the lumbar spine.

The Veteran is contesting the propriety of the reduction of the rating for her service-connected degenerative facet and disc disease of the lumbar spine from 20 to 10 percent.

Historically, an August 1995 rating decision established service connection and a 10 percent rating for disability of the lumbar spine, effective July 18, 1995.  An April 2010 rating decision increased the rating to 20 percent, effective September 25, 2007.

In August 2014, the RO proposed to decrease the rating from 20 to 10 percent.  After the requisite notice, the RO effectuated the reduction in a June 2015 rating decision, effective September 1, 2015.

Several general regulations are applicable to rating reduction cases, without regard for how long a particular rating has been in effect.  These regulations  impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the Veteran s disability.   Brown v. Brown, 5 Vet. App. 413, 420 (1994) (referring to 38 C.F.R. �� 4.1, 4.2, 4.13).

VA,  in any rating-reduction case,  must determine (1)  based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability ; (2)  whether the examination reports reflecting such change are based upon thorough examinations ; and (3) whether any improvement  actually reflects an improvement in the Veteran s ability to function under the ordinary conditions of life and work .  Id. at 421; see Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow in all reduction cases,  regardless of the rating level or the length of time that the rating has been in effect ); 38 C.F.R. � 3.344.

In this case, while January 2013 and April 2014 examiners provided range of motion measurements and other relevant findings, they did not indicate whether the Veteran s disability had improved or whether any improvement would be maintained under the ordinary conditions of life and work.  Indeed, during the latter of those examinations, it was noted that the Veteran had experienced a  [s]low, [i]nsidious progression of low back pain,  that she reported flare-ups, that she had to alternate standing and sitting, and that the examiner was unable to express an opinion with respect to whether factors such as pain, weakness, fatigability, or incoordination significantly limited range of motion and/or functional ability either during flare-ups or when the back was used repeatedly over a period of time.  For the Veteran s part, she has expressly denied any improvement.

In light of the foregoing, the Board is not persuaded that it has been demonstrated by a preponderance of the evidence that the Veteran experienced sustained material improvement in her disability under the ordinary conditions of life and work.  As such, the reduction was not proper, and the prior 20 percent rating is restored.

REASONS FOR REMAND

Entitlement to a rating in excess of 20 percent for degenerative facet and disc disease of the lumbar spine.

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran s claim.  38 U.S.C. � 5103A; 38 C.F.R. � 3.159.

The Veteran was most recently provided a VA examination of her lumbar spine in November 2017.  Although the examiner noted that the Veteran experienced flare-ups of back pain, and that pain, fatigue, and lack of endurance significantly limited functional ability with repeated use over a period of time, the examiner indicated, without explanation, that he could not describe such functional loss in terms of range of motion.  The report is inadequate.  See, e.g., Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  Another examination is required.

This matter is REMANDED for the following action:

1. Obtain and associate with the Veteran s claims file any outstanding, relevant VA treatment records.

2. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of her low back.  The examiner should provide a full description of the Veteran s associated functional impairments as they relate to the relevant rating criteria.

The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible.  If it is not feasible to perform such testing, that should be stated.

The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time.  If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran s competent statements with respect to the frequency, duration, characteristics, and severity of her limitations.

Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.  An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation.

That said, if it is the examiner s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible.

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the matter remaining on appeal should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

DAVID A. BRENNINGMEYER

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	R. Kettler, Associate Counsel


judge_norm: L M BARNARD

text:
��Citation Nr: 19112000

Decision Date: 02/14/19	Archive Date: 02/14/19

DOCKET NO. 14-41 170A

DATE:	February 14, 2019

REMANDED

Entitlement to a compensable disability rating for left ear hearing loss is remanded.

REASONS FOR REMAND

The Veteran had active service in the Navy from February 1969 to February 1973 and from August 1975 to October 1978.

1. Entitlement to a compensable disability rating for left ear hearing loss is remanded.

In a July 2018 statement, the Veteran asserted that his left ear hearing loss has increased in severity since the Veteran was last examined by VA.  The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of left ear hearing loss.

The matter is REMANDED for the following action:

1. Obtain the Veteran s VA treatment records for the period from January 2018 to the Present.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ear hearing loss.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to left ear hearing loss alone and discuss the effect of the Veteran s left ear disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Readjudicate the Veteran s claim.

L. M. BARNARD

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Zimmerman, Associate Counsel


judge_norm: DEBORAH W SINGLETON

text: Entitlement to service connection for the cause of the Veteran’s death is granted.

text:
��Citation Nr: 19113000

Decision Date: 02/22/19	Archive Date: 02/22/19

DOCKET NO. 13-31 836

DATE:	February 22, 2019

ORDER

Entitlement to service connection for the cause of the Veteran s death is granted.

FINDINGS OF FACT

1. The Veteran died in November 2011.  The Veteran s death certificate lists the immediate and only cause of death as acute myelogenous leukemia (AML).

2. At the time of the Veteran s death, service connection was established for depression and hepatitis A/B.

3. The record evidence is at least in relative equipoise as to whether pancytopenia, brought on by the Veteran s service-connected hepatitis, contributed substantially or materially to his death.

CONCLUSION OF LAW

Resolving reasonable doubt in favor of the appellant, the criteria for service connection for the cause of the Veteran s death have been met.  38 U.S.C. �� 1110, 1131, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from February 1956 to July 1958 and from October 1958 to July 1962.  He died in November 2011.  The appellant is the Veteran s surviving spouse.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In August 2016, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been prepared and associated with the claims file.

In November 2016, the Board remanded this matter for additional development.

Service Connection for the Cause of the Veteran s Death

The appellant seeks service connection for the cause of the Veteran s death.  Specifically, she contends that the Veteran s service-connected hepatitis caused the pancytopenia that ultimately caused his death from leukemia.

A. Legal Criteria

Benefits may be awarded to a Veteran s surviving spouse for death resulting from a service-connected disability.  The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death.  See 38 U.S.C. � 1310; 38 C.F.R. � 3.312 (a).

The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.  See 38 C.F.R. � 3.312 (b).  In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially to death; that it combined to cause death; or that it aided or lent assistance to the production of death.  It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.  See 38 C.F.R. � 3.312 (c)(1).  Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability.  See 38 C.F.R. � 3.312 (c)(2).  However, service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of the death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  See 38 C.F.R. � 3.312 (c)(3).

B. Factual Background

In an August 2006 statement, the Veteran s treating physician, Dr. L.M.S., indicated that the Veteran was being treated for pancytopenia, which was  secondary to hepatitis B.

A July 2008 private treatment record shows that the Veteran had  leukopenia which has been since the Hepatitis- B  in the military.  The Board notes that pancytopenia encompasses leukopenia, or low levels of white blood cells.  See Dorland s Illustrated Medical Dictionary 1368 (32nd ed. 2012) (defining pancytopenia as  deficiency of all cellular elements of the blood  and stating to  [s]ee also  leukopenia and thrombocytopenia); Watson v. Brown, 4 Vet. App. 189, 191 (1993) (noting that leukopenia is a  condition involving abnormally fewer white blood cells ).

In a May 2013 VA opinion, a VA examiner opined that the Veteran s AML was not a direct complication of his service-connected hepatitis A/B.  As noted by the Board in the November 2016 remand, the May 2013 VA opinion only pertained to the possible relationship between AML and hepatitis A/B, but it did not address the appellant s theory regarding the Veteran s service-connected hepatitis A/B causing the Veteran s pancytopenia, which in turn, caused the Veteran s AML.

In a March 2017 VA opinion, a VA examiner opined that the Veteran s pancytopenia at least as likely as not  contributed to his development of AML and ultimate death.   The examiner noted that this opinion was based on medical literature, to include a study submitted by the appellant entitled  Pancytopenia: A Clinico Hematological Study,  which relates pancytopenia to various types of leukemia.  The examiner also opined that the Veteran s pancytopenia  was not causally related to events during his military service, to include his service-connected hepatitis A/B.   However, as rationale, the examiner citied to medical literature that appears to indicate that hepatitis may account for 2 to 5 percent of cases of pancytopenia.  Additionally, the examiner acknowledged the August 2006 statement of Dr. L.M.S., that the Veteran s pancytopenia was secondary to his hepatitis B, but discounted the opinion because Dr. L.M.S. also noted that she was unable to  ascertain with certainty if this condition is related to a bout of hepatitis with jaundice which he indicates he experienced while in the armed forces.

In an April 2017 letter, Dr. A.M., a colleague of the Veteran s treating physician, indicated that he reviewed the Veteran s medical records and noted that the Veteran was diagnosed with hepatitis A/B during military service and treated for pancytopenia in 2008.  Dr. A.M. indicated that he could not  rule out the possibility that hepatitis B contributed to [the Veteran] developing pancytopenia.

C. Analysis

At the time of his death, the Veteran had been awarded service connection for depression and hepatitis A/B.  The Veteran s death certificate lists the immediate and only cause of death as relapsed refractory acute myelogenous leukemia (AML).  The issue in this case involves the relationship, if any, between the cause of the Veteran s death and the Veteran s service-connected hepatitis.

After reviewing the foregoing evidence, the Board finds that service connection for the cause of the Veteran s death is warranted.

First, the Board finds that the Veteran s pancytopenia was due to service-connected hepatitis B.  The Board finds that Dr. L.M.S. s etiology opinion and Dr. A.M. s statement, coupled with private treatment records showing that the Veteran s pancytopenia, anemia, leukopenia and thrombocytopenia were regularly discussed in concert with his history of hepatitis, provides plausible support for the appellant s contention that the Veteran s pancytopenia was caused by his service-connected hepatitis.  While the Board acknowledges the March 2017 VA opinion to the contrary, the examiner did not provide a sufficient explanation for the conclusion reached and seems to have based the opinion, in large part, on Dr. L.M.S. s statement that she could not  ascertain with certainty  whether the Veteran s pancytopenia was caused by his in-service hepatitis.  See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  The Board notes that the burden of proof is one of equipoise and not certainty.

On balance, the Board finds that the appellant has produced sufficient evidence supporting the critical link between the Veteran s service-connected hepatitis and his pancytopenia.  The evidence, at a minimum, gives rise to a reasonable doubt on the question of whether the Veteran s pancytopenia was due to service-connected hepatitis.  See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ( Congress, through the enactment of section 5107(b) s low standard of proof for all issues material to a claim for veterans benefits, has authorized to VA to resolve a... medical question in the claimant s favor so long as the evidence for and against that question is in  approximate balance  ).

Additionally, the Board finds that the Veteran s pancytopenia contributed to the cause of his death.  In the regard, the March 2017 VA examiner opined that the Veteran s pancytopenia at least as likely as not  contributed to his development of AML and ultimate death.   This opinion is supported by adequate rationale and references to relevant medical literature, to include the treatise evidence submitted by the appellant.  See Mattern v. West, 12 Vet. App. 222, 228 (1999) (noting that a medical article or treatise  can provide important support when combined with an opinion of a medical professional  if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least  plausible causality  based upon objective facts rather than on an unsubstantiated lay medical opinion).  There is no contrary opinion on this issue.

(Continued on the next page)

In sum, the Board concludes that the Veteran s service-connected hepatitis caused the Veteran s pancytopenia, which, in turn, lent assistance in causing the Veteran s death from AML.  The Board finds that reasonable doubt should be resolved in favor of the appellant.  Accordingly, entitlement to service connection for the cause of the Veteran s death is warranted.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	R. Kipper, Associate Counsel


judge_norm: A ISHIZAWAR

condition: knee

text:
��Citation Nr: 19114000

Decision Date: 02/26/19	Archive Date: 02/26/19

DOCKET NO. 15-11 392

DATE:	February 26, 2019

REMANDED

Entitlement to service connection for a right knee disability, to include right knee total arthroplasty, status post degenerative joint disease, is remanded.

Entitlement to service connection for a left knee disability, to include left knee total arthroplasty, status post degenerative joint disease, is remanded.

Entitlement to service connection for shingles is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1971 to September 1975.

In December 2017, the Veteran appeared for a video conference hearing before the undersigned.  A transcript of the hearing is of record.

In June 2018, the Board remanded the three issues on appeal, entitlement to service connection for a right knee disability, left knee disability, and shingles, for additional development.  Specifically, the Board found that additional records development was necessary with respect to the claims for service connection for a right and left knee disability, and that the Veteran should be scheduled for VA examinations to address all three of his claims on appeal.

Regarding the VA examinations, the record reflects that the Veteran was scheduled for VA examinations in November 2018, but he failed to appear.  After he was notified of such in the November 2018 supplemental statement of the case, the Veteran submitted a December 2018 correspondence in which he stated he was not notified of the examination appointments because VA did not have his correct mailing address and requested new examination dates.  The Veteran provided an updated address in that correspondence, and his private attorney submitted the same address in another December 2018 correspondence.

Based on the Veteran s December 2018 correspondence, it appears the Agency of Original Jurisdiction has taken action to schedule the Veteran for new VA examinations and has notified him of such at his current mailing address.  See January 2019 VA correspondence.  Accordingly, although the three issues on appeal were returned to the Board in December 2018, in light of the potential that these VA examinations will occur, the Board will defer adjudication until these scheduling requests have been addressed and/or the VA examinations occur.

Finally, with respect to the Board s June 2018 remand request that another attempt to be made to obtain records from North Colorado Medical Center and Weld County Hospital, the record reflects that the Veteran was contacted by letter in August 2018 concerning this matter.  Although he did not respond to that letter, the Board notes that it was addressed to the Veteran at his former mailing address.  Accordingly, another attempt must be made to obtain these records with notification provided to the Veteran at his current mailing address.

The matters are REMANDED for the following actions:

1. Update the Veteran s address on all platforms to the address listed in Block 8 in the correspondence received on or around December 13, 2018.

2. After the above development is completed, contact the Veteran and ask that he identify the provider(s) of any additional treatment or evaluation he has received for his bilateral knee disability, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure such records of treatment or evaluation.  To determine the dates and nature of the Veteran s past knee surgeries, if any, obtain complete records from all sources identified by him, to specifically include from North Colorado Medical Center and Weld County Hospital.  All records/responses received must be associated with the claims folder.

3. Ensure that all development related to the Veteran s bilateral knee and shingles, to include the VA examinations that were requested in January 2019, is completed and that any resulting records or reports are associated with the claims file.

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	N. Shah, Associate Counsel


judge_norm: P M DILORENZO

text:
��Citation Nr: 19115000

Decision Date: 03/01/19	Archive Date: 02/28/19

DOCKET NO. 16-03 535

DATE:	March 1, 2019

REMANDED

Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded.

REASONS FOR REMAND

The Veteran had active duty from January 1981 to January 1985.

In February 2019, the Veteran had a hearing before the undersigned Veteran s Law Judge. As this case is being decided under the one-touch initiative, a hearing transcript will be associated with the file at a later date.

Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded.

The Board sincerely regrets the additional delay, but finds that the Veteran s claim for an increased rating for his lumbar spine disability must be remanded for further development.

A review of the record reflects that the last relevant VA examination of record regarding the Veteran s lumbar spine disability was conducted in May 2013. At his February 2019 hearing, the Veteran indicated that the severity of this service-connected disability has increased since the last VA examination.

Therefore, in light of the above, the claim is being remanded for a new VA examination.

 The matter is REMANDED for the following action:

1. Obtain the Veteran s VA updated treatment records.

2. Obtain the Veteran s private medical treatment records, including from Blake Medical Center dated since August 2011 and Palma Sola Medical Associates (Dr. Sammour) dated since February 2013.

3. Thereafter, schedule the appropriate VA examination to assess the current level of severity of the Veteran s service-connected lumbar spine disability. The claims file, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests should be completed and all relevant clinical findings reported. The appropriate Disability Benefits Questionnaire (DBQ) should be filled out.

In the examination report, the examiner must include all the following for the lumbar spine disability:

A. Active range of motion testing results.

B. Passive range of motion testing results.

C. Weightbearing range of motion testing results.

D. Non-weightbearing range of motion testing results.

If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified.

The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors.

If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate.

(Continued on the next page)

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

P.M. DILORENZO

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	N. Sangster, Counsel


judge_norm: ANTHONY C SCIRÉ, JR

benefit: overpayment

text: The issue of whether an overpayment of Department of Veterans Affairs (VA) compensation benefits was properly created due to concurrent receipt of Workers’ Compensation benefits is remanded.

text:
��Citation Nr: 19116000

Decision Date: 03/05/19	Archive Date: 03/05/19

DOCKET NO. 10-37 409

DATE:	March 5, 2019

REMANDED

The issue of whether an overpayment of Department of Veterans Affairs (VA) compensation benefits was properly created due to concurrent receipt of Workers  Compensation benefits is remanded.

The issue of entitlement to a waiver of recovery of the overpayment debt in the amount of $5,244.00 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1967 to April 1969, with confirmed service in the Republic of Vietnam.  He received a Purple Heart Medal among other awards and decorations.

In January 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO).  A transcript is associated with the record.

The Board of Veterans  Appeals (Board) remanded this appeal in August 2015; upon review, the Board finds the claims must again be remanded to comply with the prior remand directives.

With regard to the issue of whether an overpayment of compensation benefits was properly created for a period from October 1993 to April 1999, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a payment history directly from the Department of Labor that included the dates the Veteran received Workers  Compensation payments from September 1993 to April 1999 and to provide an audit of the Veteran s overpayment debt thereafter.  The AOJ contacted the Veteran for the dates he received Workers  Compensation during period in question and an April 2017 notification letter informed the Veteran that the information was required before an audit of his overpayment debt could be performed.  The Veteran did not respond.  The AOJ issued a Supplemental Statement of the Case (SSOC) that continued to deny the Veteran s claim on the evidence of record.  The Board finds the above actions were not responsive to the Board s directives, specifically that an official payment history be requested from the Department of Labor, rather than the Veteran.  As such, additional development is required.

In addition, the August 2015 Board decision found the Veteran disagreed with an April 2009 decision on waiver of indebtedness in the amount of $11,878.00 by the Committee on Waivers and Compromises (COWC) and directed the AOJ to provide a statement of the case (SOC).  The Board notes that an SOC on the issue of the validity of the overpayment has since reduced the debt to $5,244.00.  As an SOC on the issue of waiver was not provided before the appeal was returned to the Board, the claim must also be remanded.  See 38 C.F.R. � 19.26; Manlincon v. West, 12 Vet. App. 238 (1999).  The claim should be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.

The matters are REMANDED for the following actions:

1. Request the Department of Labor, Office of Workers  Compensation Programs, provide a payment history and/or exact dates the Veteran received Workers  Compensation payments due to injury-related disability for his left shoulder from his job at the United States Postal Service from September 1993 to April 1999.

2. Then, provide the Veteran with a month-to-month explanation of his $5,244.00 overpayment debt due to concurrent receipt of Workers  Compensation payments from October 1993 to April 1999.  Such explanation should include completion of an audit for the entire period covered by the overpayment that provides an accounting to the Veteran, explaining the amount of the overpayment and how it was calculated.

3. After the issue regarding whether the overpayment was properly created is resolved to the Veteran s satisfaction or denied, issue a Statement of the Case that addresses the waiver issue of recovery of an overpayment debt of VA disability compensation benefits in the amount of $5,244.00, if appropriate (i.e., if the debt is still found to be valid).

The Veteran is advised that a timely substantive appeal must be filed in order to perfect an appeal on this matter.  38 C.F.R. � 20.302(b).  Only if the appeal is timely perfected is the issue to be returned to the Board.

ANTHONY C. SCIR�, JR

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Odya-Weis, Counsel


judge_norm: L B CRYAN

disposition: denied

text:
��Citation Nr: 19117000

Decision Date: 03/07/19	Archive Date: 03/07/19

DOCKET NO. 17-24 038

DATE:	March 7, 2019

ORDER

Entitlement to a compensable rating for left ear hearing loss prior to November 27, 2017 is denied.

Entitlement to a compensable rating for bilateral hearing loss from the period beginning November 27, 2017 is denied.

FINDINGS OF FACT

1. For the period prior to November 27, 2017, the Veteran has demonstrated hearing acuity of Level I for his service-connected left ear, and hearing acuity of Level I is imputed for his nonservice-connected right ear.

2. For the period beginning November 27, 2017, the Veteran has demonstrated hearing acuity of Level I for his service-connected left ear, and demonstrated hearing acuity of Level I for service-connected right ear.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a compensable rating for left ear hearing loss prior to November 27, 2017 have not been met.  38 U.S.C. �� 1155, 5107(b); 38 C.F.R. �� 4.1, 4.3, 4.85, DC 6100, 4.86, 3.321(b), 3.385, 20.1102.

2. The criteria for entitlement to a compensable rating for bilateral hearing loss for the period beginning November 27, 2017 have not been met.  38 U.S.C. �� 1155, 5107(b); 38 C.F.R. �� 4.1, 4.3, 4.85, DC 6100, 4.86, 3.321(b), 3.385, 20.1102.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from June 1980 to February 1986.  These matters come on appeal from a January 2015 rating decision that granted service connection for left ear hearing loss with a noncompensable rating, and denied service connection for right ear hearing loss.  The Veteran disagreed with the initial noncompensable rating for left ear hearing loss and filed a notice of disagreement in June 2015.  The regional office (RO) issued a statement of the case in April 2017.  The Veteran appealed to the Board in May 2017.  During the pendency of this appeal, the RO granted service connection for right ear hearing loss with a noncompensable rating, effective November 27, 2017.  The Board notes that a subsequently issued rating decision codesheet from November 2018 indicates that the effective date for service connection in the right ear May 17, 2018, with no explanation for that change.  Accordingly, the Board presumes this is in error, and that the correct effective date is November 27, 2017 for the grant of service connection for right ear hearing loss.  In this regard, the Board has re-characterized the issue as of November 27, 2017 to bilateral hearing loss.

Increased Rating

As explained above, there is some confusion over the proper effective date for the grant of service connection for right ear hearing loss.  The Board will give the Veteran the benefit of all reasonable doubt and proceed under the assumption that the November 27, 2017 effective is the proper effective date for the grant of service connection for right ear hearing loss.  Further, any error in this regard would be harmless because, as explained below, a Roman numeral designation I should be assigned to the right ear for all relevant periods, whether assigned based on the hearing loss demonstrated on authorized audiological examinations, or assigned in an imputed manner under 38 C.F.R. � 4.85(f).  See 38 C.F.R. 20.1102 ( Any error or defect in any decision by the Board of Veterans  Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision. ).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. � 1155; 38 C.F.R. � 4.1.

The  assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the rating schedule, unlike extraschedular consideration under 38 C.F.R. � 3.321(b), rely exclusively on objective test results).

An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. � 4.85(a).

To evaluate the degree of disability from hearing impairment, the rating schedule assigns Roman numeral designations, from I through XI. Generally, the Roman numerals are assigned based on the puretone threshold average and the percent of speech discrimination. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. � 4.85(d). On Table VI ( Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination ), the puretone threshold average is located along a horizontal axis and the percent of speech discrimination is located along a vertical axis. 38 C.F.R. � 4.85, Table VI. For each ear, the intersection of the puretone threshold average and the percent of speech discrimination on this table results in a Roman numeral designation. The Roman numerals are then matched between the  better  ear and the  poorer  ear on Table VII ( Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) ) to produce a disability rating under Diagnostic Code 6100.

However, when the puretone threshold at each of the four specified frequencies is 55 or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. � 4.86.  Table VIa does not use percent of speech discrimination and relies only on puretone threshold average to determine the appropriate Roman numeral designation that will then be input into Table VII to determine the appropriate rating.

All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 U.S.C. � 5107(b); 38 C.F.R. � 4.3.

It is the Board s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

1.  Entitlement to a compensable rating for left ear hearing loss prior to November 27, 2017 is denied.

In cases where a Veteran s impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, a Roman numeral designation of I will be imputed for the nonservice-connected ear.  38 C.F.R. � 4.85(f).

The Veteran underwent an audiological examination in April 2016.  Pure tone thresholds, in decibels, were as follows:

 	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	20 	25 	25 	25 	35

LEFT	20 	25 	30 	30 	35

The average decibel loss in the right ear was 27.5 and the average decibel loss in the left ear was 30.  Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear.

Since service connection for right ear hearing loss was not yet established during this period, the Roman numeral designation I will be imputed for the right ear.  Applying the above results to Table VI results in the assignment of I as the Roman numeral designation for the left ear.  Inputting I and I into Table VII results in the assignment of a noncompensable rating.

As there is no other authorized audiological testing that is contrary to this examination report, the Veteran s claim for a compensable rating for left ear hearing loss prior to November 27, 2017 is denied.

2. Entitlement to a compensable rating for bilateral hearing loss for the period beginning November 27, 2017 is denied.

The Veteran underwent a VA examination for hearing loss in July 2018.  On the authorized audiological evaluation in, pure tone thresholds, in decibels, were as follows:

 	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	25 	35 	35 	40 	40

LEFT	25 	35 	35 	40 	45

The average decibel loss in the right ear was 37.5, which will be rounded up to 38 for the purposes of evaluation.  The average decibel loss in the left ear was 38.75, which will be rounded up to 39.  Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 94 percent in the left ear.

Applying the above results to Table VI results in the assignment of I as the Roman numeral designation for both the left and right ears.  Inputting I and I into Table VII results in the assignment of a noncompensable rating.  As there is no other authorized audiological examination with findings to the contrary, the Veteran s claim for a compensable rating for bilateral hearing loss from the period beginning November 27, 2017 is denied.

In summary, although the Veteran s hearing loss is service-connected, it is not severe enough to warrant a compensable rating based on the findings from the audiograms noted above.

L. B. CRYAN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	P. Macchiaroli, Attorney Advisor


judge_norm: MICHAEL J SKALTSOUNIS

condition: psychiatric

text:
��Citation Nr: 19119000

Decision Date: 03/15/19	Archive Date: 03/14/19

DOCKET NO. 15-28 562

DATE:	March 15, 2019

ORDER

Entitlement to service connection for a cervical spine disorder, diagnosed as cervical disc disease with intervertebral disc syndrome (IVDS) and bilateral upper extremity radiculopathy, is granted.

Entitlement to service connection for left hand carpal tunnel syndrome is granted.

Entitlement to service connection for right hand carpal tunnel syndrome is granted.

REMANDED

Entitlement to service connection for a psychiatric disorder, claimed as depression, is remanded.

FINDINGS OF FACT

1. The Veteran s cervical spine disorder is related to his military service.

2. The Veteran s bilateral carpal tunnel syndrome is related to his military service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a cervical spine disorder, diagnosed as cervical disc disease with IVDS and bilateral upper extremity radiculopathy have been met.  38 U.S.C. �� 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. �� 3.102, 3.303, 3.304 (2018).

2. The criteria for entitlement to service connection for left hand carpal tunnel syndrome have been met.  38 U.S.C. �� 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. �� 3.102, 3.303, 3.304 (2018).

3. The criteria for entitlement to service connection for right hand carpal tunnel syndrome have been met.  38 U.S.C. �� 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. �� 3.102, 3.303, 3.304 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1963 to April 1985.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

In October 2018, the Veteran testified at a Board hearing and that transcript has been associated with the Veteran s claims file.

Service Connection

The Veteran contends that his disabilities are due to his military service.

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The requirement of a current disability is  satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. � 3.309(a). 38 C.F.R. � 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. � 3.303(d).  Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. �� 3.309.

In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought.  See 38 C.F.R. � 3.310 (2017).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. � 1153 (a); 38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra.  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

1. Entitlement to service connection for a cervical spine disorder

The Veteran contends that his neck disability is due to his military service.

As to a current diagnosis, the Board notes that the Veteran s condition has been diagnosed as cervical disc disease with IVDS and bilateral upper extremity radiculopathy.

As to the in-service incurrence, the Board notes that the Veteran was treated for a cervical strain in October 1978.

As to the Veteran s lay statements, the Veteran testified that he experienced neck spasms while on active duty.

Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in April 2017.  Following the examination, the examiner diagnosed the Veteran with cervical disc disease with IVDS and bilateral upper extremity radiculopathy.  Then the examiner opined that  it appears less likely than not that the veteran's current neck condition was incurred in or caused by treatment of neck pain in service.  The veteran's neck pain in service appears to be a cervical strain which would be expected to be temporary and resolve.   The examiner added that  indeed the STRs and his own testimony today do not suggest an ongoing neck condition in service.  When he left service no active cervical condition was noted and he was able to work construction and then as a mail carrier for many years.  Only later did he develop cervical disc disease and he current related symptoms and it appears more likely than not that wear and tear in his civilian career lead to this current condition.

The Board also notes that the Veteran s private doctor provided an opinion regarding the nature and etiology of the Veteran s condition.  In January 2016, Dr. M.S. opined that Veteran  has long standing cervical arthritis which may be secondary to degenerative changes due to trauma while doing time in the service.  Due to the constant movement in the trucks and unstructured roads he has obtained these injuries while doing his tour in Vietnam.   See January 2016 Dr. M.S. letter.  In addition, the Veteran submitted an additional letter from another private medical provider.  The Veteran s current provider stated that the adverse environmental conditions that precipitated the Veteran s conditions clearly included musculoskeletal injuries, many years of repetitive motion, and the absolute secondary effects that are exacerbated by chronic adversities.  The provider then opined that  I believe that it is at least as likely as not that the Veteran s degenerative disc disease is at least as likely as not is connected to military service and has been chronic since that time.   See August 2018 K.M. PA-C letter.

In sum, the Board finds that service connection is warranted for the Veteran s cervical spine disorder.  In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions.  After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for a cervical spine disorder is in equipoise.  Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the Veteran s cervical condition diagnosed as, cervical disc disease with IVDS and bilateral upper extremity radiculopathy.

2.  Entitlement to service connection for left hand carpal tunnel syndrome

3.  Entitlement to service connection for right hand carpal tunnel syndrome

As to a current diagnosis, the Board notes that the Veteran s condition has been diagnosed as bilateral carpal tunnel syndrome.

As to the in-service incurrence, the Board notes that the Veteran suffered a right wrist injury while on active duty; however, the Veteran s service treatment records were silent for any treatment or a diagnosis for bilateral carpal tunnel syndrome.

As to the Veteran s lay statements, the Veteran testified that his carpal tunnel syndrome is due to all the typing that he was required to do throughout his active duty career.

Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in April 2017.  Following the examination, the examiner opined that it is  less likely than not that the veteran's carpal tunnel syndrome (CTS) was incurred in or caused by typing in service.  Repetitive injury in service (possibly associated with typing) is a possible cause for CTS, but that appear unlikely in this case.   The examiner added that  if this was the cause, his symptoms would likely have developed in service and his testimony and STRs do not indicate that this was the case.  Rather the CTS symptoms developed after leaving service and it therefore seems more likely that CTS developed due to wear and tear as a civilian working in construction and for the Post Office and with changes of aging over time.

In addition, the Board notes that the Veteran s private doctor submitted a letter regarding the nature and etiology of the Veteran s condition.  The Veteran s doctor stated that  I have had the opportunity to review the applicable record, including his military records, as well as history thereafter to the present time.  Additionally, the Veteran has shared his most recent information from the VA concerning these issues.   The doctor went on to state that  in this case I believe that there is at least as likely as not a clear connection and likely aggravation connected to the underlying etiology of the Veteran's time in military service, specifically the  rigors  of twenty years of repetitive activities during military service and his current issues of carpal tunnel syndrome with s/p surgery.   See August 2018 Dr. J.M letter.

In sum, the Board finds that service connection is warranted for the Veteran s bilateral carpal tunnel syndrome.  In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions.  After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for bilateral carpal tunnel syndrome is in equipoise.  Based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the Veteran s bilateral carpal tunnel syndrome.

REASONS FOR REMAND

1. Entitlement to service connection for a psychiatric disorder, claimed as depression, is remanded.

The Board acknowledges that the Veteran submitted a medical opinion regarding this issue in November 2018; however, the Board is unable to determine the identity and qualifications of the medical professional who provided this medical opinion.  Specifically, the Board notes that the opinion did not contain a signature block identifying the doctor who signed the opinion and the Board is unable to determine based on the signature alone if the signer of the letter is one of the Veteran s current medical providers.  As such, the Board finds that the record is incomplete and that further development is necessary to adequately develop the Veteran s claim.

The matter is REMANDED for the following action:

1. Contact the Veteran in order to determine what medical professional signed the November 2018 statement.

2. Obtain the Veteran s outstanding private treatment records from the doctor who provided the opinion contained in the November 2018 statement.

3. Obtain the Veteran s VA treatment records from August 24, 2015, to the present.

4. Then undertake any additional steps deemed necessary to adequately develop the Veteran s claim.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Rescan, Associate Counsel