judge_norm: JACQUELINE E MONROE

condition: back

text:
Citation Nr: 0826000
Decision Date: 08/04/08    Archive Date: 08/13/08

DOCKET NO.  04-28 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina

THE ISSUE

Entitlement to service connection for  disability of the
knees and lumbar spine, claimed as osteoarthritis.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Daniels, Law Clerk
INTRODUCTION

The veteran served on active duty from September 1962 to
September 1965.

This appeal to the Board of Veterans' Appeals (Board) arises
from a December 2002 rating decision in which the RO, inter
alia, denied the veteran's claim for service connection for
osteoarthritis of the knees and lumbar spine.  In December
2003, the veteran filed a notice of disagreement (NOD).  A
statement of the case (SOC) was issued in June 2004 and the
veteran filed a substantive appeal (via a VA Form 9, Appeal
to the Board of Veterans' Appeals) in July 2004.

The Board notes that the veteran was previously represented
by the American Legion (as reflected in an August 2001 VA
Form 21-22, Appointment of Service Organization as Claimant's
Representative).  In September 2004, the veteran submitted a
new VA Form 21-22,  naming Disabled American Veterans (DAV)
as his representative.  The Board recognizes the change in
representation.

In a September 2004 VA Form 9,   the veteran requested a
local hearing with the Board (Travel Board hearing), and, in
an  October 2004 statement, the veteran's representative
requested  a  hearing with the decision review officer (DRO).
In a June 2006 letter the veteran's representative clarified
that the veteran wanted only a DRO process and hearing in
regard to his appeal.

In August 2007 the veteran testified during a DRO hearing at
the RO.  A transcript of that hearing is of record.

As a final preliminary matter, the Board notes that, in
September 2004 VA Form 9, the veteran raised the issue of
entitlement to service connection for knee and lumbar spine
disabilities secondary to his service-connected hand
condition. Since the RO has not adjudicated a claim for
secondary service connection for knee and lumbar spine
disabilities, it is not properly before the Board; hence, it
is referred to the RO for appropriate action.

FINDINGS OF FACT

1.  All notification and development actions needed to fairly
adjudicate the claim on appeal have been accomplished.

2.  No disability of the knees and lumbar spine was shown in
service, and there is no competent evidence or opinion even
suggesting a medical relationship  between active service and
the osteoarthritis of the knees and lumbar spine diagnosed
many years post service (to include medical evidence that
osteoarthritis of the knees and lumbar spine was manifested
to a compensable degree within the first post-service year).

CONCLUSION OF LAW

The criteria for service connection for  disability of the
knees and lumbar spine, claimed as osteoarthritis, are not
met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2002
& Supp. 2007); 38 C.F.R. �� 3.102, 3.159, 3.307, 3.309,
(2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 51077, and 5126
(West 2002 & Supp. 2007)) includes enhanced duties to notify
and assist claimants for VA benefits.  VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. �� 3.102, 3.159, and 3.326(a) (2007).

Notice requirements under the VCAA essentially require VA to
notify a claimant of any evidence that is necessary to
substantiate the claim(s), as well as the evidence that VA
will attempt to obtain and which evidence he or she is
responsible for providing.  See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002) (addressing the duties
imposed by 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b)).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112
(2004), after a substantially complete application for
benefits is received,  proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim(s); (2) that VA
will seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the
claim(s), in accordance with 38 C.F.R. � 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. �
3.159 has been revised, in part.  See 73 Fed. Reg. 23,353-
23,356 (April 30, 2008).  Notably, the final rule removes the
third sentence of 38 C.F.R. � 3.159(b) (1), which had stated
that VA will request that a claimant provide any pertinent
evidence in his or her possession.

VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).

VCAA-complaint notice must be provided to a claimant before
the initial unfavorable decision on a claim for VA benefits
by the agency of original jurisdiction (in this case the RO).
Id.; Pelegrini, 18 Vet. App. At 112.  See also Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003).  However, the VCAA notice requirements
may, nonetheless, be satisfied if any errors in the timing or
content of such notice are not prejudicial to the claimant.
Id.

In this appeal, a July 2002 pre-rating letter and a February
2005 post-rating letter provided notice to the appellant
regarding what information and evidence was needed to
substantiate the claim for service-connection, as well as
what information and evidence must be submitted by the
appellant, and what information and evidence would be
obtained by VA.  The February 2005 VCAA letter specifically
informed the veteran to submit any evidence in his possession
pertinent to the claim on appeal (consistent with Pellegrino
and the version of 38 C.F.R. � 3.139 then in effect).  The
December 2002 RO decision reflects the initial adjudication
of the claim after issuance of the July 2002 letter.  After
issuance of the February 2005 letter, and opportunity for the
veteran to respond, the November 2007 supplemental SOC (SSOC)
and April 2008 SSOC reflect readjudication of the claim.
Hence, the veteran is not shown to be prejudiced by the
timing of the latter notice.  See Mayfield v. Nicholson, 20
Vet. App. 537, 543 (2006) (the issuance of a fully compliant
VCAA notification followed by readjudication of the claim,
such as in an SOC or SSOC, is sufficient to cure a timing
defect).

The Board notes that the appellant has not been provided
specific notice regarding VA's assignment of disability
ratings and effective dates.  However, the absence of such
notice is not shown to prejudice the veteran.  Because the
Board herein denies the claim for service connection, no
disability rating or effective date is being, or will be,
assigned.  Accordingly, there is no possibility of prejudice
to the appellant under the notice requirements of
Dingess/Hartman.

The record also reflects that VA has made reasonable efforts
to obtain or to assist in obtaining all relevant records
pertinent to the matter on appeal.  Pertinent medical
evidence associated with the claims file consists of service
medical records, November 2002 and September 2007 VA
examinations, and VA and private treatment records.  Also of
record and considered in connection with the appeal are the
hearing transcript, and various written statements provided
by the veteran and his representative, on his behalf.
Moreover, there is no indication that further RO action to
satisfy the duty to assist in connection with this claim is
needed.

The Board notes during November 2003 private treatment, the
veteran reported that he had been receiving Social Security
disability for "mental depression", and a September 2007 VA
examiner noted that the veteran's disability was for
psychological problems, not because of his back or his knees.
No Social Security Administration (SSA) decision or records
are of  however, the veteran was not awarded SSA benefits for
disability of the knees and lumbar spine, but rather, as he
stated, mental depression.  As such, and because there has
been no argument that the SSA records are pertinent to the
claim being adjudicate, nothing requires that additional
adjudication resources be expended to obtain these records.
See 38 U.S.C.A. � 5103A(b),(c); Baker v. West, Vet. App. 163,
169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994);
Gibber v. Derwinski, 2 Vet. App. 470, 472 (1992).

The Board also notes that, in connection with  June 2007
private treatment, the veteran reported that there are more
recent outstanding VA treatment from the Salisbury VA Medical
Center (VAMC).  However, as discussed below, the service
connection claim is being denied because there is no medical
evidence of a nexus between the knees and lumbar spine and
military service, and there is no indication or argument that
any outstanding VA records or other records reflect a medical
nexus opinion.   Indeed, when asked during the RO hearing if
his service medical records had been reviewed to identify a
nexus between his current disability and service, the veteran
responded "no."  to which the veteran answered, no.  Under
these circumstances, a remand to obtain any such outstanding
VA treatment records that would, at most, only confirm
continuing treatment   would impose unnecessary additional
burdens on adjudication resources, with no benefit flowing to
the veteran, and is, thus, unnecessary.  See Soyini v.
Derwinski, 1 Vet. App. 540, 56 (1991).

In summary, the duties imposed by the VCAA have been
considered and satisfied.  Through various notices of the RO,
the veteran has been notified and made aware of the evidence
needed to substantiate this claim, the avenues through which
he might obtain such evidence, and the allocation of
responsibilities between himself and VA in obtaining such
evidence.  There is no additional notice that should be
provided, nor is there any indication that there is
additional existing evidence to obtain or development
required to create any additional evidence to be considered
in connection with the claim on appeal.  Consequently, any
error in the sequence of events or content of the notice is
not shown to prejudice the veteran or to have any effect on
the appeal.  Any such error is deemed harmless and does not
preclude appellate consideration of the matter on appeal, at
this juncture.  See Mayfield, 20 Vet. App. at 543 (rejecting
the argument that the Board lacks authority to consider
harmless error and affirming that the provision of adequate
notice followed by a readjudication "cures" any timing
problem associated with inadequate notice or the lack of
notice prior to an initial adjudication).  See also ATD Corp.
v. Lydall, Inc., 159 F.3d 534 549 (Fed. Cir. 1998).

II.  Analysis

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. ��  1110, 1131; 38 C.F.R. � 3.303.  Service
connection may be granted for any disease diagnosed after
discharge from service when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service.  38 C.F.R. � 3.303(d).

Service connection may be presumed, for certain chronic
diseases, such as arthritis, which are manifested to a
compensable degree (10 percent for arthritis) within a
prescribed period after discharge from service (one year for
arthritis), even though there is no evidence of such disease
during the period of service.  This presumption is rebuttable
by probative evidence to the contrary.  See 38 U.S.C.A.
�� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.30.

The veteran asserts that his current disability of the knees
and lumbar spine is a result of his active duty service.
However, after a full review of the record, including the
medical evidence and the statements made by the appellant and
on his behalf, the Board finds that the claim for service
connection for disability of the knees and lumbar spine is
not warranted.

The service medical records are negative for any knee or back
complaints, findings, or diagnoses.     The Board notes that
the veteran's July 1965 separation exam revealed his spine
and lower extremities to be normal.

On VA examination in November 1970, the veteran was diagnosed
as having gout with a history of involvement of multiple
joints.

Records of private treatment dated from December 1984 to
November 2007 reflect complaints of and treatment for pain in
the lower back.  An August 2001 indicates that the veteran
had extensive degenerative bone changes from L2 through L5
and extensive degenerative disk disease from L2-3 through L5-
S1.  Broad, diffuse disc bulges were noted at every level and
there was diffuse neural foraminal stenosis as the result of
these degenerative changes.  The exiting nerve roots from L2
through L5 were at risk for compression.  Severe canal
stenosis was noted at L4-5 with moderate canal stenosis
particularly laterally noted at L2-3. It was also noted that
the traversing nerve roots would be at risk, and grade I
anterolisthesis of L4 on L5.

An October 2001 private treatment record reflects diagnoses
of cervical stenosis, lumbasra stenosis, chronic low back
pain with radiculopathy, and mixed sensory/motor
polyneuropathy.  During an October 2002 private treatment
examination, the physician reported that the lumbar spinal
stenosis had remained clinically stable.

On  November 2002 VA examination, the veteran reported that
he had  been diagnosed with gout and osteoarthritis in
December 1964, but that he had been given "disability" only
for gout.  On examination, the veteran ambulated normally,
with no pain on motion in general.  Examination of bilateral
knees revealed no deformity, limitation of motion, pain on
motion, positive drawer, McMurray or Lachman's signs; the
examiner also found no locking or giving way of the joints.
The examiner diagnosed the veteran with gout and
osteoarthritis affecting primarily his hands, knees, and
spine.  No x-ray findings were noted.

During the August 2007 DRO hearing, the veteran discussed his
claim for disability for the knees and lumbar spine.. He
stated that he  had had X-rays of his knees, and that ,
during a previous examination,  he was asked to bend and
stoop and that during that time he had been exercising,
taking glucasomine and was flexible.  He further stated that
he was no longer flexible.

On September 2007 VA examination of  the back, the veteran
reported a history of pain in his back and that the stiffness
in his back was there all the time.  He indicated  that the
pain radiated to both legs and that he experienced some
numbness in his feet.  He claimed to have lost sensation in
his feet, causing problems in walking.  The e examiner noted
that no specific injury to the back had been documented.  On
examination, the veteran's back was  normal in appearance. He
could bend about 20 degrees forward, and  he could extend
backward 20 extra degrees from vertical.  The veteran could
bend laterally 20 degrees in either direction without
significant pain.  He could bend forward with some stiffness,
but with no significant pain, and rotate 45 degrees in either
direction with no significant pain, but with some concern
about his balance.  The diagnoses were degenerative disk
disease/degenerative joint disease (DDD/DJD) of the cervical
spine, with stenosis and residuals, DDD/DJD for the
lumbosacral spine, with stenosis and residuals, and
questionable evidence of an L5 radiculopathy, and peripheral
neuropathy, thought not to be secondary to the veteran's
spinal disease.

In response to the RO's  request for a medical opinion on the
question of whether the veteran's current lumbar spine
disability was due to or a result of military service , the
examiner indicated that he could not state the veteran's
problems were related to his military service without
resorting to unfounded speculation.

During a September 2007 VA examination of  the knees, the
veteran reported that he had had problems with his knees for
many years, that his knees are painful and feel as if they
are swollen.  The examiner noted that there was no evidence
in the claims file e that the veteran had problems with his
knees, and that he saw  examiner saw no mention of the knees
in the report of the 1965 VA examination.  On examination,
the veteran's  knees were normal in appearance, with no
redness, swelling, or tenderness.  The veteran could extend
the knees to 0 degrees.  The examiner also indicated  that
the veteran could flex the knees to 145 degrees surprisingly
easily, with no pain or discomfort.  There was  no
abnormality on the knees on varus or valgus stress, no drawer
sign or McMurry's sign, and no evidence of abnormal shoe wear
pattern.  The examiner noted that the veteran's gait was slow
and deliberate; however, it did not appear to be painful.
Neurological examination revealed  no knee jerk on the left
side, normal knee jerk on the right and normal, equal, and
symmetrical strength in the lower extremities.  The examiner
also noted that the veteran had a decreased perception of
light touch using the diabetic monofilament over both lower
extremities distally to the ankles, and bilateral equal and
symmetrical.  The examiner indicated that he could find no
documentation of X-rays showing degenerative changes in the
knees.  The diagnosis was patellofemoral syndrome with
residuals.

In response to the RO's request for a medical opinion on the
question of whether the veteran's current knee disability was
due to or a result of military service, the examiner
indicated that he could not state the veteran's problems were
related to his military service without resorting to
unfounded speculation.

As indicated above, in this case, the available service
medical records do not show that the veteran had any
disability of the knees and/or lumbar spine, to include
osteoarthritis, during active service.  Hence, no disability
of the knees and lumbar spine was shown in service.

The record also reflects that no knee and/or lumbar spine
disability, to include any osteoarthritis, was documented
until many years after service.  In the absence of documented
x-ray findings, the record raises a question as to whether
the veteran, in fact, suffers from arthritis affecting the
knees and lumbar spine.  See 38 C.F.R. � 4.71a, Diagnostic
Code 5003 (providing for a minimum 10 percent rating for
arthritis if there is  X-ray evidence of that condition).  In
any event, evidence is osteoarthritis is considered a valid
diagnosis, the first such diagnosis  (without  X-ray evidence
of arthritis in the knees), was in November 2002, well
outside the one-year period for presumptive service
connection .  Moreover,  the first X-ray evidence of DDD in
the lumbar spine was in August 2001, over thirty years after
separation from service.  The Board  points out that the
passage of many years between discharge from active service
and the medical documentation of a claimed disability is a
factor that tends to weigh against a claim for service
connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).

Further, in the only medical opinion to address the etiology
of the veteran's current disability of the knees and lumbar
spine, the September 2007 VA examiner was unable to comment
on the existence of any medical relationship between current
knee and back disability and active service without resorting
to mere speculation.  Clearly, this comment is unsupportive
of the claim, and written in terms which effectively preclude
the application of the benefit-of-the doubt doctrine.  See 38
C.F.R. � 3.102 (specifying that reasonable doubt means a
substantial doubt and within the range of possibility as
distinguished from pure speculation or remote possibility).
Significantly, neither the veteran nor his representative has
presented, identified, or even alluded to the existence of
any medical evidence or opinion that would, in fact, support
the claim.

In addition to the medical evidence, in adjudicating the
claim, the Board has considered the appellant's and his
representative's oral and written assertions; however, none
of this evidence provides a basis for allowance of the claim.
As indicated above, the claim turns on the matter of whether
there exits a medical nexus between the claimed disability
and service-a matter within the province of trained medical
professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-38
(1994).  As the appellant and his representative are not
shown to be other than laypersons without appropriate medical
training and expertise, neither is competent to render a
probative (i.e., persuasive) opinion on a medical matter.
See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998),
citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  See
also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").  Hence, the lay assertions in
this regard have no probative value.

In adjudicating the claim, the Board also has considered the
applicability of the benefit-of-the-doubt doctrine; however,
as no competent, persuasive evidence supports the claim, that
doctrine is not for application, and the veteran's claim for
service connection for disability of the knees and lumbar
spine must be denied.  See 38 U.S.C.A. � 5107(b); 38 C.F.R.
� 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

Service connection for a disability of the knees and lumbar
spine, claimed as osteoarthritis is denied.

____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL E KILCOYNE

disposition: denied

text:
Citation Nr: 0827000
Decision Date: 08/11/08    Archive Date: 08/18/08

DOCKET NO.  07-01 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas

THE ISSUE

Entitlement to service connection for the cause of the
veteran's death.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Associate Counsel

INTRODUCTION

The veteran had active military service from August 1960 to
June 1967.  The veteran died in December 2005, and the
appellant is the veteran's widow.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2006 rating decision denying
the appellant's claim for entitlement to service connection
for the cause of the veteran's death.

FINDINGS OF FACT

1.  The veteran died in December 2005, and the veteran's
death certificate lists the immediate cause of his death as
an acute myocardial infarction.  No other significant
conditions were noted as contributing to the veteran's death.

2.  At the time of his death, the veteran had no service-
connected disabilities.

3.  Cardiac impairment was not shown for years after service
and has not been medically linked to service.

CONCLUSION OF LAW

A service-connected disease or disability was neither the
principal cause, nor a contributory cause, of the veteran's
death.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. ��
3.303, 3.312 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Service Connection for the Cause of Death

Service connection for VA compensation purposes will be
granted for a disability resulting from disease or personal
injury incurred in the line of duty or for aggravation of a
pre-existing injury in the active military, naval, or air
service.  See 38 U.S.C.A. �� 1110, 1131; 38 C.F.R. �
3.303(a).  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 C.F.R. �
3.312(a).  The issue involved will be determined by the
exercise of sound judgment, without recourse to speculation,
after a careful analysis has been made of all the facts and
circumstances surrounding the death of the veteran,
including, particularly, autopsy reports.  See id.

The appellant contends that she is entitled to service
connection for the cause of the veteran's death, which is
noted on his death certificate as acute myocardial
infarction.

The veteran's service medical records fail to reflect any
complaints of, treatment for, or diagnosis of a heart
condition.  Specifically, the veteran's entrance and
separation physical examination reports, as well as the
numerous intervening physical examination reports, note the
veteran's heart, lungs, chest, and vascular system as normal.
Additionally, in his corresponding self-reports of medical
history, the veteran consistently denied any pain or pressure
in his chest or palpitation or pounding heart.  The veteran's
electrocardiogram reports from service all reflect results
that were noted to be within normal limits.  A February 1965
treatment record reveals that the veteran complained of pain
that radiated to his left arm, and accordingly the treating
medical professional ordered a chest and cervical spine x-
ray.  An undated chest x-ray report associated with the
veteran's service medical records reveals normal findings.
Additional service medical records from February, March, and
April 1965 reflect additional complaints of radiating left
arm pain.  A July 1965 treatment record notes that the
veteran's various diagnostic lab tests and x-rays failed to
reflect any abnormalities; thus, in the treating medical
professional's opinion, the veteran's on-going pain was
probably a manifestation of some anxiety, and it was doubtful
that the pain could be explained by any organic disease.

The veteran's claims file is void of any references to a
heart condition for many years after his discharge from
service.  An August 1999 VA treatment record reflects the
veteran's report that he had a heart attack in 1982 and a
bypass surgery in approximately 1996.  A July 2005 VA
treatment record reflects that the veteran sought treatment
after the detection of carotid bruits (sounds heard over the
carotid artery area).  The treating medical professional
noted a diagnosis of carotid stenosis, severe in the right
internal carotid area and moderate in the left internal
carotid area.  However, neither of these records relate the
veteran's heart condition to his time in service.

While the appellant believes that the veteran's acute
myocardial infarction was related to his time in service, she
is not medically qualified to prove a matter requiring
medical expertise, such as an opinion as to diagnosis or
medical causation.  See Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992).  As such, the appellant's opinion is
insufficient to provide the requisite nexus between the
veteran's service and the cause of his death.

In sum, the Board finds that there is no medical evidence
suggesting a link between the veteran's time in service and
his acute myocardial infarction.  The evidence does not
reflect that the veteran had a heart condition in service,
and the evidence of record reflects that the veteran did not
seek treatment for a heart condition until many years after
leaving service.  Thus, based on the medical evidence before
the Board, there is no indication that the veteran's service
was either the principal or a contributory cause of death.
See 38 C.F.R. � 3.312(a).  As such, the criteria for service
connection for the cause of the veteran's death have not been
met, and the appellant's claim is therefore denied.

II.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and
assistance obligations to claimants.  See 38 U.S.C.A.
�� 5102, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a).

Notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits and must:  (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide.  Quartuccio
v. Principi, 16 Vet. App. 183 (2002).

In the context of a claim for Dependency and Indemnity
Compensation (DIC) benefits, which includes a claim of
service connection for the cause of the veteran's death,
section 5103(a) notice must be tailored to the claim.  The
notice should include (1) a statement of the conditions, if
any, for which a veteran was service connected at the time of
his or her death; (2) an explanation of the evidence and
information required to substantiate a DIC claim based on a
previously service-connected condition; and (3) an
explanation of the evidence and information required to
substantiate a DIC claim based on a condition not yet service
connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).

In the present case, required notice was provided by a letter
dated in February 2006, which was sent prior to the initial
AOJ decision in this matter and which informed the appellant
of all three elements required by the Quartuccio Court as
referenced above.  Furthermore, the letter also provided
adequate notice regarding the Hupp Court requirements
applicable to DIC claims by informing the appellant of the
evidence necessary to substantiate a DIC claim for a non-
service connected condition, as the veteran had no service-
connected disabilities at the time of his death.

Turning next to the VA's duty to assist, the Board notes that
the evidence includes the veteran's service medical and VA
treatment records, as well as the veteran's Social Security
Administration records.  Moreover, no records identified by
the appellant as relevant have not been obtained.  The
appellant was offered the opportunity to testify at a hearing
before the Board, but she declined.  Accordingly, VA's notice
and assistance obligations are satisfied.

ORDER

Service connection for the cause of the veteran's death is
denied.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: A BRYANT

disposition: granted

text:
Citation Nr: 0828000
Decision Date: 08/19/08    Archive Date: 08/28/08

DOCKET NO.  06-04 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Entitlement to an initial disability evaluation in excess
of 10 percent for post-traumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating for compensation
purposes based on individual unemployability (TDIU) due to
service-connected disability.

REPRESENTATION

Appellant represented by:	 Robin Webb, Attorney at Law

ATTORNEY FOR THE BOARD

C. Eckart, Counsel

INTRODUCTION

The veteran served on active duty from October 1965 to
October 1967.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from rating decisions by the Nashville, Tennessee,
Regional Office (RO) of the Department of Veterans Affairs
(VA) which in March 2004 denied entitlement to TDIU and in
September 2004 granted service connection and assigned an
initial 10 percent disability rating PTSD.

The veteran's attorney has sent additional evidence pertinent
to this appeal, along with a waiver of agency of original
jurisdiction (AOJ) review dated in March 2008.  Thus, it is
not necessary to remand this matter for AOJ review.  See 38
C.F.R.
� 20.1304(c) (2007).

FINDINGS OF FACT

1.  The veteran's PTSD has been shown to be manifested by
such symptoms as anxiety, severe and persistent panic
attacks, flashbacks, nightmares, insomnia, depressive mood,
anxiety, hypervigilance, startle response and forgetfulness
and has been found by medical evidence to result in
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to these symptoms.

2.  The veteran's service-connected disabilities are of such
severity as to render him unable to obtain or maintain
substantially gainful employment.

CONCLUSIONS OF LAW

1.  The criteria for an initial 70 percent rating for PTSD
have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R.
�� 3.159, 3.102, 4.3, 4.7, 4.132; 38 C.F.R. � 4.130;
Diagnostic Code 9411 (2007).

2.  The criteria for a TDIU have been met. 38 U.S.C.A. ��
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R.
�� 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to notify and assist

The VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103,
5103A (West 2002 & Supp. 2007); 38 C.F.R. � 3.159 (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).  Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
For claims pending before VA on or after May 30, 2008, 38
C.F.R. � 3.159 was recently amended to eliminate the
requirement that VA request that a claimant submit any
evidence in his or her possession that might substantiate the
claim.  See 73 FR 23353 (Apr. 30, 2008).  This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ).  Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).  Regarding the issue of
entitlement to TDIU, the Board is granting in full the
benefit sought on appeal.  Accordingly, assuming, without
deciding, that any error was committed with respect to either
the duty to notify or the duty to assist, such error was
harmless and will not be further discussed.

Regarding the PTSD claim, the issue on appeal arises from the
veteran's disagreement with the initial evaluation following
the grant of service connection.  In the present case, the
veteran's claim on appeal was received in March 2004.  Prior
to granting service connection for the PTSD in September
2004, the RO sent a duty to assist letter addressing the
service connection claim in August 2004.  The veteran has
appealed the initial ratings assigned for the PTSD.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United
States Court of Appeals for Veterans Claims (Court) held
that, upon receipt of an application for a service connection
claim, 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded.  Since an increased rating for PTSD is
being granted in this case, any deficiency will be addressed
by the RO after implementing the Board's decision.

Moreover, as the veteran is challenging the initial
evaluation assigned following the grant of service
connection.  In Dingess, the Court held that in cases where
service connection has been granted and an initial disability
rating and effective date have been assigned, the typical
service-connection claim has been more than substantiated, it
has been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled.  Id. at 490-91.  Thus,
because the notice that was provided before service
connection was granted was legally sufficient, VA's duty to
notify in this case has been satisfied.  See also Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).  (Once service connection
is granted the claim is substantiated, additional notice is
not required and any defect in the notice is not
prejudicial.)  Therefore, no further notice is needed.

VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c), (d).  Service
treatment records were previously obtained and associated
with the claims folder.  Furthermore, VA, Social Security and
private medical records were obtained and associated with the
claims folder.

Assistance shall also include providing a medical examination
or obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim.  38
U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The VA examinations
conducted in May 2005 and November 2006 provided current
assessments of the veteran's condition based not only on
examination of the veteran, but also on review of the
records.

In summary, the duties imposed by 38 U.S.C.A. �� 5103 and
5103A have been considered and satisfied.  Through notices of
the RO, the claimant has been notified and made aware of the
evidence needed to substantiate his claim for higher
disability ratings, the avenues through which he might obtain
such evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence.  There is no
additional notice that should be provided, nor is there any
indication that there is additional existing evidence to
obtain or development required to create any additional
evidence to be considered in connection with the claims
decided on appeal.  Consequently, any error in the sequence
of events or content of the notice is not shown to prejudice
the claimant or to have any effect on the appeal.  Any such
error is deemed harmless and does not preclude appellate
consideration of the matter being decided, at this juncture.
See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006)
(rejecting the argument that the Board lacks authority to
consider harmless error).  See also ATD Corp. v. Lydall,
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Increased Rating

Disability evaluations are determined by the application of a
schedule of ratings that is based on the average impairment
of earning capacity.  38 U.S.C.A. � 1155 (West 2002); 38
C.F.R., Part 4 (2007).  Separate diagnostic codes identify
the various disabilities.  38 C.F.R. � 4.1 (2007) requires
that each disability be viewed in relation to its history and
that there be emphasis upon the limitation of activity
imposed by the disabling condition.  38 C.F.R. � 4.2 (2007)
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran working or
seeking work. 38 C.F.R. � 4.7 (2007) provides that, where
there is a question as to which of two disability evaluations
shall be applied, the higher evaluation is to be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating is to
be assigned.

While the veteran's entire history is reviewed when assigning
a disability evaluation, 38 C.F.R. � 4.1, where service
connection has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern.  Francisco v. Brown, 7
Vet. App. 55 (1994).  A recent decision of the Court has held
that in determining the present level of a disability for any
increased evaluation claim, the Board must consider the
application of staged ratings.  See Hart v. Mansfield, 21
Vet. App. 505 (2007).  In other words, where the evidence
contains factual findings that demonstrate distinct time
periods in which the service-connected disability exhibited
diverse symptoms meeting the criteria for different ratings
during the course of the appeal, the assignment of staged
ratings would be necessary.  In appeals of the initial rating
assigned following a grant of service connection, "staged
ratings" or separate ratings for separate periods of time may
be assigned based on the facts found following the initial
grant of service connection.  Fenderson v. West, 12 Vet. App.
119 (1999).

PTSD is rated under the "General Rating Formula for Mental
Disorders," Diagnostic Code 9411.  38 C.F.R. � 4.130 (2007).
A 50 percent rating is assigned under 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; difficulty in
establishing and maintaining effective work and social
relationships.

A 70 percent evaluation, is warranted for the following
symptoms: 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.

A 100 percent evaluation is warranted for total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusion or hallucination; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
ability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; and memory loss for names of closes relatives,
own occupation, or own name.

The Global Assessment of Functioning (GAF) is a scale
reflecting the "psychological, social, and occupational
functioning in a hypothetical continuum of mental health-
illness."  DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, FOURTH ED, American Psychiatric Association (1994)
(DSM-IV), p.32; 38 C.F.R. �� 4.125(a), 4.130 (2007).  GAF
scores of 61 to 70 are indicative of some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty
in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but
generally functioning pretty well, with some meaningful
interpersonal relationships.  Scores of 51-60 involve
moderate symptoms, such as flat affect and circumstantial
speech, occasional panic attacks, or moderate difficulty in
social or occupational functioning (e.g., few friends or
conflicts with peers or co-workers.)  Scores ranging from 41
to 50 reflect serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational or school
functioning (e.g., no friends, unable to keep a job). Id.
Scores ranging from 31 to 40 reflect some impairment in
reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) or major impairment in
several areas, such as work or school, family relations,
judgment, thinking, or mood, (e.g., depressed man avoids
friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and
is failing at school). Id.  Scores of 21-30 indicate that
behavior is considerably influenced by delusions or
hallucinations or serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) or inability to
function in almost all areas (e.g., stays in bed all day; no
job, home, or friends).

In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court
stated that the specified factors for each incremental rating
were examples rather than requirements for a particular
rating.  The Court stated that the analysis should not be
limited solely to whether the claimant exhibited the symptoms
listed in the rating scheme.  The Court also found it
appropriate to consider factors outside the specific rating
criteria in determining the level of occupational and social
impairment.

The veteran filed his claim on appeal in March 2004.  Service
connection for PTSD was granted by the RO in a September 2004
rating decision which granted an initial 10 percent rating,
which the veteran has appealed.

Among the evidence received in conjunction with his claim are
as follows.  VA treatment records dating back to 2001 reflect
psychiatric treatment for complaints of insomnia with a
history of having been on Ritalin for at least 8 years and a
diagnosis of history of attention deficit hyperactivity
disorder (ADHD) adult onset, consider Bipolar disorder type
II and Mood disorder not otherwise specified, as reported in
February 2001.  At the time of this report he was noted to
work as a sales manager.  Records from 2002 reflect that in
September 2002 he quit his job due to having more anxiety
attacks at work, with symptoms present for more than 1 year
but increasing in frequency.  His anxiety symptoms included
diaphoresis, rapid heart beat, feeling faint and nervous.  At
the time PTSD was not yet diagnosed, but his diagnoses were
history of ADHD adult onset, Bipolar Type II disorder with
recent episode depressed and personality disorder cluster B,
rule out narcissistic.  His symptoms improved in December
2002 both with medication, and he indicated that being away
from his job helped decrease his anxiety symptoms.  Follow-up
in February 2003 revealed him to be having more panic attacks
than usual, about 2-4 times a day and usually precipitated by
the thought of returning to work if his disability claim is
denied.  He also endorsed not sleeping well and waking every
hour.  Mental status examination was significant for anxious
mood and constricted affect, but otherwise not significant.
His diagnosis remained unchanged.  He continued to report
daily panic symptoms in April 2003, with panic occurring when
he is driving or not in a structured setting.  He indicated
medications helped but he was ashamed to leave his house for
fear of panic symptoms.  He also reported daily thoughts
about his deceased brother who committed suicide and endorsed
occasional thoughts of suicide.  His diagnoses remained
unchanged.

The veteran also underwent independent medical examinations
in May 2003 for disability purposes and was noted to have
symptoms that included being worried, anxious and restless
daily, suicidal thoughts about once a week, irritability,
sleep problems, panic attacks and being easily distracted.
He underwent a comprehensive examination, which included a
review of medical records and detailed his social and
industrial history, noteworthy for having been married once
to his current wife, and holding several jobs including long
term employment, and having last worked in October 2002.
Mental status was significant for his mood as worried,
depressed, anxious and restless, with constricted emotional
expression, and a dominant emotion of irritability.
Otherwise his mental status examination revealed no evidence
of cognitive disorder or of a serious thought disorder.
Following the examination, which included psychological
testing, he was assessed with Axis I Major depressive
disorder (MDD), recurrent moderate, panic disorder with
agoraphobia, ADHD combined time and pain disorder associated
with both psychological factors and a general medical
condition.  Axis II included narcissistic traits.  His GAF
was 40 currently and 70 in the past year.

VA treatment records from 2003 reflect that in June 2003 he
was seen by Dr. Small, who noted the veteran's complaints of
recurring service related nightmares since leaving the
service and gave a history of anxiety symptoms in the service
which he hid in order to appear fit.  The June 2003 records
also noted the veteran to have numerous situational stressors
and complaints of poor sleep and periods of being unaware of
what's going on around him, as well as increased episodes of
anger.  He also reported having panic symptoms on a daily
basis and stopped driving due to them.  Objectively he was
depressed in mood with constricted affect but otherwise no
significant findings were reported.  He was still assessed
with a history of ADHD adult onset, bipolar type II disorder
with recent episode, depressed without "PF" and personality
disorder, cluster B, rule out narcissistic.  Private
treatment records revealed he was seen in the emergency room
for syncopal event of unknown etiology.  An August 2003
private note indicated that the veteran had a syncopal
episode with workup negative and it was possibly due to panic
disorder.  The restrictions on driving and no stressful work
environment remained in place.  The diagnoses were panic
disorder, MDD and ADHD.

A January 2004 VA record revealed the veteran to report
difficult times over the holidays and dreaded visits even
from friends.  He endorsed feelings of guilt regarding
service and holidays were noted to trigger reminders of his
service as a guard on Christmas Eve.  He also reported his
anxiety was triggered by loud noise, news of Iraq, coming to
the VA, people and tasks requiring concentration such as
driving.  Objectively, he had a depressed mood, anxious and
irritable affect with no other significant findings shown.
He was noted to remain frustration with his condition and
symptoms and was having a very difficult time accepting that
he had PTSD.

Private medical records from January 2004, March 2004 and May
2004 reflect multiple psychiatric diagnoses including MDD,
ADHD, PTSD and social phobia  with insomnia, flashbacks,
guilt and anxiety.  He repeatedly was restricted from driving
and from a stressful work environment in these records.  VA
records from May and June 2004 revealed him to be bothered by
the ongoing Iraq prison scandal, and reported nightmares and
flashbacks to his guarding prisoners of war.  He also noted
that coming to the VA reminded him of a military setting and
he had to prepare himself for 2 days prior to coming to an
appointment.  He endorsed being in a depressive state in the
records from May through June 2004 with objective findings
confirming this.  The June 2004 record noted that he reported
having to leave a movie early because of feelings of anxiety
and paranoia.  The impression in June 2004 included rule out
PTSD, in addition to the differential diagnoses which were
otherwise unchanged from the diagnoses in the VA records of
June 2003.

An August 2004 intake evaluation from Dr. Small noted the
differential psychiatric diagnoses of MDD, panic disorder
ADHD and PTSD.  The report noted ongoing problems with stress
from family members and he reported suicidal thoughts on a
weekly basis, mainly occurring when he is under stress and
generally controlled with medication.  He also reported rage
episodes, frequent panic attacks and being uncomfortable
around people.  Mental status examination was significant for
worried/anxious mood with congruent affect, with no other
significant findings, and he was assessed with panic disorder
without agoraphobia, MDD recurrent and severe without
psychotic features, rule out PTSD.  His GAF score was 55-60.

Private progress notes from Dr. Small revealed ongoing
treatment for ongoing psychiatric symptoms such as panic
attacks, hypervigilance, sleep problems, and depression
throughout 2004 and 2005, with PTSD continuing to be included
among the differential diagnoses.  Private records from
August 2004 through the end of November 2004 revealed him to
be undergoing psychotherapy for symptoms that included
increased flashbacks and nightmares secondary to the Iraq
abuse scandal and panic symptoms as reported in August 2004.
These symptoms persisted through the rest of 2004 along with
some suicidal thoughts reported in September 2004, October
2004 and December 2004.  He also reported problems with
memory and concentration as well as social phobia or
isolation from others.  He continued to be restricted from
driving and stressful environments throughout these records.
Of note in December 2004, his PTSD symptoms were reportedly
increasing, with continued trigger of memories by the Iraq
prison scandal.  He also reported continued isolation, with a
June 2005 record noting he refused to attend parties due to a
fear of panic attacks.

Likewise, VA records from October through December 2004
reflect persistent problems with hypervigilance, anxiousness,
irritability, sleep problems, as well as suspicious and
depressed mood.

The veteran's wife, who has identified herself as a RN, has
repeatedly submitted statements throughout the pendency of
this appeal that the veteran's symptoms are due to PTSD.

VA treatment and private treatment records throughout 2005
repeatedly reflect that the veteran suffered from symptoms
such as nightmares, flashbacks, hypervigilance, panic
attacks, sleep disturbances and depressed mood.  In February
2005 he complained of suicidality in addition to sleep
disturbances and problems concentration.  In April 2005 he
reported an increase in his nightmares, panic attacks,
flashbacks and hypervigilance.  He also had decreased memory
and concentration.  In June 2005 his suicidality had improved
but he continued to have panic attacks, particularly in a
hospital setting.  He continued with flashbacks,
hypervigilance and nightmares in August 2005.  He was noted
to have worsening depression and PTSD along with an increase
in nightmares and emotional numbing, as well as concentration
and memory problems.  He repeatedly was restricted from
driving and from a stressful work environment in these
records up through August 2005.  Later on in records from
September 2005 and thereafter he was restricted from any
stressful environment and from driving.  In October 2005, he
had a slightly improved mood but still have memory and
concentration problems and was assessed with worsening PTSD.
In November 2005, he was noted to have an anniversary
reaction with increased depression, nightmares, insomnia and
flashbacks.  Most of the records were from Dr. Small.

A May 2005 functional capacities questionnaire completed by
Dr. Small gave an opinion that the veteran is unemployable.
The veteran was said to have severe impairment in a number of
things, including an ability to relate to other people,
deterioration of personal habits, constriction of interest,
ability to carry out or remember instructions, respond
appropriately to supervision, respond appropriately to
coworkers, or respond to customary work pressures.  He was
totally incapacitated from daily activities such as going to
church, socializing, etc.

The report of a May 2005 VA examination for PTSD included a
review of the claims file and medical records.  The veteran
was noted to be service-connected for PTSD and was claiming
TDIU secondary to this condition.  Evidence of record showed
a long standing history of MDD, panic disorder and ADHD.
There was no mention of PTSD prior to 2003.  Before being
diagnosed with PTSD he was shown to be unemployable due to
MDD and his other psychiatric disorders.  In fact, there were
reports that indicated that he was unable to drive or
complete tasks due to these psychiatric conditions.  The
examiner reviewed and recited the records in great detail.
Of note the examiner discussed the September 2004 VA
examination which diagnosed PTSD but did not diagnose any
other conditions.  The examiner noted that it was necessary
to ascertain whether the other diagnosed disabilities had
resolved or whether they were misdiagnosed.  The examiner
also noted the need to separate PTSD symptoms from non PTSD
symptoms.  The examiner reviewed the records from Dr. Small
from 2003 to 2004 and pointed out that in April 2003 only
MDD, panic disorder and ADHD were diagnosed by Dr. Small.
The veteran's symptoms were insomnia, anxiety and panic
disorder.  PTSD was noted to be diagnosed by Dr. Small in
records from 2004 to 2005.  This included an October 2004
record where the veteran was noted to have symptoms of
hypervigilance, nightmares and panic symptoms, as well as
avoidance of reminders and flashbacks.  The most recent form
from Dr. Small was noted to include multiple diagnoses
including PTSD, MDD, panic disorder without agoraphobia and
MDD.  He was noted to be restricted from stressful work
environments.  The examiner also reported that the September
2004 VA examination only diagnosed PTSD as the lone Axis I
diagnosis.  Axis II diagnosis was noted to have been deferred
and his GAF was noted to be 60.  It was after this
examination that the RO granted service connection for PTSD
and assigned an initial 10 percent rating.  The rest of the
claims file review included review of the Social Security
records and other records prior to 2003 that showed
differential diagnoses including panic disorder and MDD
recurrent, but no diagnosis of PTSD prior to 2004 and also
included a history of ADHD adult onset, shown in the records
of 2001 and a prescription of Ritalin done by a private
doctor in 2000.

The first appearance of a possible diagnosis of PTSD was
noted to have been in an August 2003 note by Dr. Small where
the veteran was noted to have recently passed out from a
panic attack.  Prior to this he had flashbacks after watching
war coverage and recalled stressors as a prison guard.  The
diagnosis was noted at the time to include history of ADHD
adult onset, bipolar (BP) type 2 disorder with recent episode
depressed without "PF", panic disorder (PD) cluster B and
rule out PTSD.  Plans were noted to include further
evaluation for PTSD.  Subsequent records were noted to not
diagnose PTSD but in a November 2003 evaluation he did relate
stressors and being upset by the recent coverage of the
Guantanamo prison situation.  He reported dreams of service
but the diagnosis was limited to MDD, recurrent, severe
without psychosis and his GAF was reportedly 50 current and
55 the past year in November 2003.

The veteran's current complaints included feeling very
nervous about doing the interview, and he stated he took
Xanax about 2 hours before the interview.  The examiner
offered the option of rescheduling the examination for a time
when he was not under the influence of medication but the
veteran declined and the interview proceeded.  The veteran's
medical history recorded an uneventful childhood, though he
was below average in school he was active socially and in
sports.  The reported stressors in service included being
assaulted while working as a correctional officer in the
service.  He discussed his concerns regarding the current
war-related prison scandals and reportedly had a panic attack
triggered by watching an interview on 60 minutes.  He
indicated that at that time he was hospitalized to rule out
stroke or myocardial infarction.  He reported getting panic
attacks when going to a VA center because it reminds him of a
military institution.  He said he gets stressed and also has
nightmares for 4-5 days.  He reported having depression and
outbursts at work during the first Gulf War.  He indicated he
recently lost his temper and threw a phone at his cat the
night before this examination.

The veteran's employment history was significant for his
working 25 years at a food company where he worked his way up
from truck driver to a sales manager.  He reported that he
was laid off when the company was sold.  He also worked for a
pet food company that was sold.  He also worked for a pencil
company which he said also no longer exists and he left about
3 1/2 years ago.  He indicated that he resigned because he
started having panic attacks and blowing up at meetings.  He
denied ever being fired.  He now felt he cannot work due to
his panic symptoms.

He reported spending his days mostly at home and no longer
had friends he used to have because of confrontations with
them and he didn't want to go out.  He sometimes did yard
work.  He indicated that his wife stays home and cares for
him.  He denied a history of consulting any mental health
professionals prior to his treatment at the VA Medical Center
(VAMC) in Nashville.  He said that he was diagnosed with ADHD
by a cardiologist and currently treated with Dr. Small in a
private office.  He denied any hospitalizations for mental
health problems.

Socially, he was married to his current wife for 36 year and
that she cares for him.  He generally gets along with his
wife, but sometimes he has a problem with his temper and
outbursts.  He did not describe any recreational activities
other than watching television.  He denied a legal history,
but did say he was close to doing violence and can't be in a
stressful situation.  He also hated being told to do
something.  The only doctor he treated with was Dr. Small and
the VAMC.

The veteran's subjective complaints included depressed
thoughts and feelings of "ending it."  He also endorsed
panic attacks more than once a week with feeling like he is
going to die, with physical manifestations such as sweating,
rapid heart beat and racing thoughts.  He felt nervous and
jumpy most of the time and angry and irritable, worried,
fearful, tense with decreased memory and decreased
concentration.  There was no history of obsessions,
compulsions, phobias, rituals or checking behaviors.  He
described himself as forgetful and often had difficulty
attending to grooming and would not do so without his wife
around.  He described periods of approximately 2 hours where
he's unaware of his surroundings.  His wife indicated that he
was always responsive when called.  Most of the time he had
to pull over when driving due to panic attacks.  He did not
describe overt flashbacks or daytime sensory experiences
relating to the traumas he had in service but did describe
avoidance especially regarding the VA and prisons and
materials about them.  He did not watch military movies.  He
endorsed depressed mood, but no crying spells.  He reported
weekly suicidal thoughts but no attempts.  He also reported
thoughts about punching a guy from work.  There was no
history of hallucinations, hypomanic or manic episodes.
Often he feels hypervigilant and "on guard" but with no
overly paranoid or delusional thoughts.  His appetite was
good and he slept 6-7 hours a night but wakes almost every
night.  Nightmares wake him up about twice a week.  He
reported no libido.  The examiner noted on review of
chronology, his symptoms began abruptly over the past 3-4
years.

Mental status examination revealed him to be well groomed and
appeared angry, avoiding eye contact.  He has average to
above average intelligence but did not seem to understand
questions.  His affect was angry and diffident.  There was no
affective displays or tearfulness.  His affect was
appropriate to the content of his interview.  His mood was
depressed.  He was alert and oriented time 4 with no unusual
psychomotor activity and no deficit of cognition, memory,
learning or attention.  His thought content was coherent and
logical without flight of ideas or loose associations.  There
was no hallucinations, delusions or other evidence of
psychotic thought.  There was no deficit of abstractions,
similarities or general information.  His judgment was poor
to fair.  He had little psychological insight and little
likelihood of developing further insight.  He developed
limited rapport with the examiner.  He scored surprisingly
low on the mini mental state examination with problems
recalling the date, etc and accordingly the examiner ordered
neuropsychological testing because of his mental status
findings, complaints and diagnoses.  The Axis I diagnosis was
MDD, chronic, which was the primary diagnosis, rule out
cognitive disorder versus pseudo dementia, rule out PTSD
noncombat, ADHD by history only.  Axis II diagnosis was no
diagnosis-cluster B personality traits.  His highest GAF
score was 41-50 representing severe symptoms and his current
GAF was the same.  The examiner discussed that the above
diagnosis was strictly provisional pending the results of
neuropsychiatric testing and Holter monitor and he would
later correlate them with his findings.  He opined that the
sudden onset of symptoms was surprising and the examiner
considered the possibility of dementia until proven
otherwise.

The report of a July 2005 VA neurological examination, which
was signed in August 2005 included a review of the claims
file following the actual examination of the veteran.  The
history of the earlier VA psychiatric examination for PTSD
done in May 2005 was noted, and the outcome of that
examination was noted to have included the ordering of this
neurological examination, to ascertain the presence and
severity of possible cognitive disorder and ADHD disorder
after mini mental status test results from the earlier
examination suggested the presence of cognitive problems.
Thus this particular examination was to specifically address
the issues of ADHD and cognitive disorder raised by the
earlier examination.

The veteran was noted to report having panic attacks and
incidents of forgetfulness such as forgetting to pay for
groceries.  He reported his primary concern was depression
and secondary concerns were panic attacks and anxiety.  He
endorsed being more withdrawn, anxious and concerned about
crowds.  He believed that his memory related problems are due
to depression.  He reported getting distracted and being
unable to finish a task.  He has not forgotten old
information.  He did not forget doing chores but will
occasionally forget what he came into the kitchen to get
something, which happens about once a week.  He denied
getting lost or having problems completing activities of
daily living such as bathing or dressing, or tasks such as
banking or management.  He did rely on his wife to help with
certain tasks and indicated that she layed out his clothes
and did the family banking.  He did feel he could do the
banking if necessary.  He reported that he does not drive in
alot of traffic because this causes him to panic.  He can
drive but prefers not to.  When he has a panic attack his
mind races, he sweats and feels like the room is closing in.
He reported 2 panic attacks out of the blue and had his heart
checked after one incident and was told it was a panic
attack.  He reported approximately one panic attack per week.
He indicated that he can calm down sometimes and that his
wife assists with that.  He sometimes takes Xanax to relieve
the anxiety.

The review of the medical records noted the prior VA
examination of May 2005 and reviewed the veteran's history in
detail.  The examiner noted that the veteran had been
diagnosed with ADHD by his son's cardiologist rather than a
psychiatrist, and that the diagnosis was apparently based on
a 14 item checklist.  The examiner deferred to the May 2005
examination for the veteran's overall history, but noted the
veteran to deny behavior problems as a child and denied
concentration problems until recently.  He took 1 and rarely
2 Ritalin per day.  The veteran was noted to report having a
bad day on the day of the May 2005 examination and had taken
Xanax which makes him lethargic.

His wife was interviewed and she expressed her belief that
the veteran was let go from previous jobs due to cognitive
problems as well as problems with coworkers.  She also
described him as having "Type A" personality with a "short
fuse."  She also described his recent preoccupation with
keeping doors locked.  She indicated that his temper was
worse and he will throw things about twice a month.  She said
he dreams about the service, about being unable to find his
papers for discharge, but indicated he did not have actual
nightmares.  She reported him as not being as "sharp" as
before.  His vigilance in locking doors has increased since
the onset of the Gulf War.  She reported that he was
concerned that he might be charged with prison abuse as he
had been a prison guard in the service, and that this concern
was triggered by recent prison abuse scandals in the news.

Mental status examination revealed him to be fully oriented
with no motor abnormalities other than a hand tremor when
drawing which appeared to be from anxiety doing the task.
His speech was clear and fluent but rapid.  His
comprehension, concentration and attention were all grossly
intact.  He had appropriate responses to questions and was
cooperative and attempted all tasks.  There was no evidence
of a formal thought disorder.  His remote memory was intact.
He reported his mood as depressed and sometimes anxious.  He
reported fair appetite and sleep.  He did appear mildly
anxious during some testing and in the beginning of the
interview.  He reported not enjoying food but ate out of
boredom.  He reported some interrupted sleep and sometimes
took Xanax.  He had anger outbursts which he reported have
not increased.  Judgment and insight were good and there was
no suicidal or homicidal ideations.

During testing he was noted to appear anxious and dysphoric
during some tasks and wiped his desk clean between tests.  He
talked rapidly and interrupted the examiner.  His overall
test results were deemed valid indicators of his cognitive
function.  After a discussion of the various tests performed,
the examiner summarized that overall there is no evidence of
a generalized cognitive decline.  He does not meet any
criteria for dementia.  His intellectual functioning was
above average and the majority of his cognitive skills were
intact.  He did have some slight decline in novel problem
solving and resistance to interference, but none of the test
results would indicate dementia or incompetence.  The Axis I
diagnosis was panic disorder without agoraphobia by history
and MDD by history.

The examiner in the July 2005 VA neurological examination
discussed that he found no evidence to clearly substantiate a
diagnosis of childhood onset ADHD and noted that ADHD does
not suddenly appear in adulthood.  It is much more likely
that the veteran is experiencing depressive symptoms that may
mimic ADHD.  His wife also was noted to describe some
personality symptoms that overlap with ADHD.  As previously
noted there was no clear indication of dementia on testing.
There were some indicators of slight frontal lobe
inefficiency which could be attributable to various causes,
including constitutional, situational, aging, early harbinger
of dementia, depression or anxiety.  At this point there was
no way to tell.  Clearly he was noted to get anxious about
his test performances and this affects his ability to
function.  His lower scores in the May 2005 VA examination
mini mental status examination were attributed to his having
taken Xanax the day of the examination for a "bad day."

This examiner opined that the veteran's anxiety is more
problematic than other reported problems.  Regarding PTSD the
examiner did not find sufficient symptoms to diagnose it.  He
was noted to be apparently feeling guilty about some of his
behavior in the service, but this was not sufficient to
diagnose PTSD.

An August 2005 letter from Dr. Small gave an opinion that the
veteran's chronic PTSD and accompanying symptoms such as MDD,
panic disorder and ADD were clearly caused by the traumas he
experienced in service.

A September 2005 letter from Dr. Small discussed the cause of
the veteran's PTSD as related to his service as a guard where
he was attacked and placed in dangerous situations.
Currently he has nightmares and flashbacks.  His symptoms
worsened after the news broke of the prison scandal in Iraq.
He has been more hypervigilant, more isolative and more
suspicious.  He also reported increased depression and
difficulty maintaining a workload.

A January 2006 letter from Dr. Small clarifies that he
diagnosed the veteran with PTSD and various associated
symptoms.  He has treated the veteran since July 2002.  Prior
to that the veteran was seen by various psychiatrists at the
Nashville VAMC and also had a private psychiatric
examination.  Each of the psychiatrists generally diagnosed
the veteran with MDD, panic disorder, ADHD etc.  One of the
testing psychiatrist's, Dr. Montgomery, noted that his tests
showed no evidence of malingering.  In October 2003, Dr.
Small recommended that the veteran get additional
psychological therapy and analysis from the VA psychiatry
based on his symptoms and interviews.  In January 2004, the
psychologist working with the veteran noted that he was
having a difficult time accepting that he has PTSD.  Since
September 2004, three psychiatrists diagnosed PTSD.  As Dr.
Small stated in September 2005 he opined that MDD, panic
disorder, ADHD etc were symptoms of PTSD and cited reasons
for this opinion including his September 2005 report and
functional capacity form from May 2005.  He also cited the
DSM-IV R, page 465, 4th Edition, Paragraph 3 as support that
all the symptoms experienced by the veteran are directly
associated with PTSD.  Given this and the 3 1/2 years he
treated the veteran both as a VA and private doctor, Dr.
Small concluded that the veteran was suffering from PTSD
prior to his first treatment and that the symptoms of MDD,
panic disorder, ADHD are a manifestation of PTSD and are not
separate from PTSD and noted that the VA acknowledged in the
Federal Register that it not feasible to attribute signs and
symptoms to 1 of 2 or more coexisting conditions.

VA records from 2006 reflect ongoing persistent symptoms of
anxiety and depression and PTSD.  In February 2006 he
reported feeling more anxious because he had to come to the
VA.  He endorsed recurrent dreams about the military
including his stressors and reported poor sleep, but with no
evidence or complaints of psychotic thoughts.  Objectively he
was calm, cooperative with normal speech, normal eye contact
and anxious mood with constricted affect.  His thought
processes were linear, logical, goal directed.  His memory
and concentration were intact and judgment and insight were
fair.  His motivation was good.  He was assessed with PTSD,
chronic.  He continued to be restricted from a stressful
environment and driving in private progress notes from
throughout 2006, which noted worsening PTSD with symptoms of
flashbacks, nightmares, insomnia, depressive mood, anxiety,
hypervigilance, startle response and forgetfulness.  His
symptoms were aggravated in March 2006 by his brother's death
and persisted throughout the entirety of 2006.

The report of a November 2006 VA examination is noted to be
identical to the report of a May 2005 VA examination with the
exception that the examiner now inconcorporated the results
form the August 2005 VA neurological examination in this
report and changed the diagnosis and discussion portion of
the examination in light of the August 2005 neurological
examination findings.  The examiner stated that the
conclusions he provided in the May 2005 VA examination
remained valid other than as follows.  While neither the VA
neurological examiner and this examiner found a diagnosis of
PTSD for which the veteran was service-connected, the veteran
has clearly manifested significant and severe anxiety and
mood symptoms throughout the years for which numerous
diagnoses have been provided.  In addition, the diagnostic
interview with this examiner in 2005 was distorted by the
fact that the veteran had taken a tranquilizer before that
examination which clearly contributed to his poor performance
on the mini mental state examination which suggested a
cognitive disorder for which there was no evidence on
neurological tests.  Based on this examiner's review of
records including the August 2005 neuropsychological testing
and Holter monitor report, the examiner feels that the
veteran's diagnoses have been provided which are not
consistent with this examiner's understanding of the
veteran's illness.  The examiner conceded that he would not
call the other diagnoses "misdiagnosed" however as each
practitioner's understanding and eventual formulation of a
diagnosis is based on his or her perception of the patient
and his symptoms as they are presented on a given date.

The following was the examiner's final diagnosis:  The
examiner felt this diagnosis best describes the veteran's
mental disorder and its manifestations throughout the years
and on the day the examiner interviewed him.  The examiner
did not feel any additional Axis I diagnosis was necessary.
The Axis I diagnosis was major depressive disorder (MDD),
chronic, primary diagnosis.  Axis II was no diagnosis,
cluster B personality traits.  His highest GAF the past year
was 41-50, severe symptoms, and current GAF was 41-50.  It
should be noted that prior to the VA examination done in
September 2004 when PTSD was diagnosed, the veteran had
carried a diagnosis of MDD.  The examiner noted that the
instructions from his previous examination report from 2005
asked that the effects of each psychiatric condition be
separated or the examiner needed to indicate that effects of
each condition overlapping cannot be separated.  The symptoms
of PTSD needed to be clearly described and the examiner
needed to state how symptoms of PTSD and PTSD alone affected
his employability.  Since the examiner did not find a
diagnosis of PTSD, any and all psychiatric impairment and
resulting disability are related to the MDD.  As he presented
in 2005 the veteran would have been unemployable as a result
of his MDD.  The examiner was unable to provide comment on
the veteran's diagnosis or condition since the date of his
last report as he has had no further contact with the
veteran.  Any assessment of his condition since this
examiner's May 2005 examination should be evaluated in a new
examination in which subsequent reports may be evaluated in
the context of a more current interview.

In January 2007 he was followed up for PTSD and MDD.  He was
unable to shrug off the holiday depression and was more
isolative and had panic symptoms about coming to his
appointment.  He felt more hypervigilant since his family was
coming to visit.  Nightmares and flashbacks were prevalent.
However there were no homicidal or suicidal ideations or
objective evidence of psychosis or of impairment in judgment
or insight.  He was observed to be calm and pleasant but with
depressed mood and affect.  The diagnosis was PTSD and MDD.
His GAF was 60.  His GAF remained unchanged from 60 in July
2007 when he reported recent panic symptoms as well as sleep
problems with nightmares and being constantly worried with
depressive spells.  The July 2007 note diagnosed PTSD with
continuing anxiety and depression but functioning at
baseline.  Private treatment records from 2007 reflect
persistent problems with anxiety, depression, nightmares,
flashbacks, frequent panic attacks, increased worry and
hypervigilance throughout the year.  He continued to be
restricted from driving and stressful environments.  His
diagnoses continued to include PTSD, MDD and ADD.

Letters submitted by Dr. Small in November 2007 and December
2007 reiterated this doctor's opinion that the correct
diagnosis in this veteran's case remains PTSD and that any
other psychiatric symptoms and/or diagnoses including MDD,
panic disorder, ADHD, etc, are manifestations of his PTSD.
He indicated that the veteran's symptoms cannot be clinically
separated from his PTSD.  His opinion was based on his long
and continued treatment of the veteran, as well as review of
other medical records, including the most recent VA
examination reports from May 2005 and the addendum of
November 2006.  Dr. Small indicated that the examination
reports did not refute the clinical diagnosis made by him.

A February 2008 VA treatment note following up PTSD and MDD
noted the veteran to report having a panic attack during the
week, with panic symptoms more prevalent during this month,
and also reported being in a "funk" for the past few weeks,
as well as having erratic sleep.  He also endorsed vivid
nightmares and anger issues.  Mental status was significant
for depressed mood and restricted affect, but otherwise
normal.  His diagnosis was PTSD and GAF was 50-55.

Based on a review of the foregoing, the Board finds that from
the pendency of this appeal, the evidence supports a grant of
70 percent for the veteran's PTSD symptoms.  The evidence
which includes the VA and private treatment records from 2001
through early 2008, in addition to the May 2005, July 2005
and November 2006 VA examinations generally show the veteran
to suffer from occupational and social impairment, with
deficiencies in most areas, such as work, family relations,
judgment, thinking, or mood, due to such severe and
persistent symptoms primarily shown include anxiety, frequent
and severe panic attacks, anger issues, sleep problems,
social isolation, memory and concentration problems which
have apparently caused him negative consequences at work to
the extent that he was compelled to quit working in 2002 due
to persistent panic attacks.  He has also reported on
numerous occasions problems with sleeping, with some
nightmares, and difficulty going to sleep.  Additionally he
has also at times had problems with persistent depressive
thoughts, with depressed or anxious mood repeatedly shown on
mental status examination, and a history of suicidal thoughts
when under stress.  Further he has also evidenced symptoms of
avoidance including the avoidance of social situations and
endorsed exaggerated startle response and hypervigilance.

Although his GAF scores have been shown to fluctuate, with
ranges as high as 60 shown, overall his GAF scores for the
most part when recorded have tended to range from 50 to 55,
but his overall symptoms which often did not include a GAF
score reflect serious symptomatology.  The May 2005 VA
examination revealed highest GAF score was 41-50 representing
severe symptoms and his current GAF was the same.  Aside from
these occasional fluctuations to higher scores, his GAF
scores tend to be consistent with serious symptoms or any
serious impairment in social, occupational or school
functioning.  Although the veteran is generally shown to be a
high functioning individual with no apparent cognitive
impairment, except for the time of the May 2005 examination,
or evidence of psychotic thought, the severity of his
impairment is demonstrated by the frequency and persistence
of his ongoing symptoms including panic attacks, anxiety,
depression, sleep problems, hypervigilance etc.  The
seriousness of such symptoms is underscored by the repeated
medical recommendations that he avoid driving or stressful
situations including work.  Thus, the evidence overall
reflects serious symptomatology affecting him occupationally
as well as socially.

Although the veteran has been diagnosed with multiple
psychiatric problems throughout this appeal, including MDD,
ADHD, bipolar disorder, GAD personality disorder, cluster B
in addition to PTSD, and in light of the conflicting medical
opinions as to whether the veteran has PTSD at all, the Board
finds that the opinion of Dr. Small who has treated the
veteran both privately and at the VA for a long period of
time outweighs the negative opinions from the VA examiners
who found no evidence of PTSD.  Dr. Small has determined that
the veteran's various psychiatric symptoms and diagnoses are
all attributable to his service-connected PTSD.  In any event
under the circumstances, VA is required to resolve all doubt
in his favor and consider his anxiety-related symptoms,
depressive symptoms and panic attacks as due to the service-
connected PTSD disability.  See Mittleider v. West, 11 Vet.
App. 181 (1998); 38 C.F.R. � 3.102.

Comparing all the manifestations with the criteria of the
rating schedule, the Board finds that the criteria for a 70
percent schedular rating under Diagnostic Code 9411 are more
nearly approximated.  38 C.F.R. � 4.7.  The criteria for a 70
percent rating are met if there are deficiencies in most of
the areas of work, school, family relations, judgment,
thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-
14 (2001).  As the veteran meets the criteria for a 70
percent rating throughout the pendency of this appeal, there
is no need to consider the applicability of staged ratings
per Fenderson, supra.

There is no evidence that the PTSD resembled the criteria for
a 100 percent rating during this time span.  Although he had
fluctuations in the severity of his symptoms, he was shown
later on to have improved his mental status, living situation
and ability to care for himself.  Thus, a rating in excess of
70 percent disabling is not warranted for PTSD.

III.  TDIU Due to Service Connected Disability

In order to establish a total disability rating based on
individual unemployability, there must be impairment so
severe that it is impossible for the average person to follow
a substantially gainful occupation. 38 C.F.R. � 3.340.  In
reaching such a determination, the central inquiry is whether
the veteran's service-connected disabilities alone are of
sufficient severity to produce unemployability.  Hatlestad v.
Brown, 5 Vet. App. 524, 529 (1993).

Total disability will be considered to exist when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation; provided that permanent
total disability shall be taken to exist when the impairment
is reasonably certain to continue throughout the life of the
disabled person.  38 C.F.R. � 4.15 (2007).

The law provides that a total disability rating may be
assigned where the schedular rating is less than total, when
the disabled person is unable to secure or follow a
substantially gainful occupation as a result of service-
connected disabilities, provided that, if there is only one
such disability, this disability shall be ratable at 60
percent or more, or if there are two or more disabilities,
there shall be at least one ratable at 40 percent or more,
and sufficient additional disability to bring the combined
rating to 70 percent or more.  38 C.F.R. �� 3.340, 3.341,
4.16(a) (2007).

For the above purpose of one 60 percent disability or one 40
percent disability, in the combination, the following will be
considered as one disability: (1) disabilities of one or both
upper extremities, or of one or both lower extremities,
including the bilateral factor (2) disabilities resulting
from common etiology or a single accident (3) multiple
injuries affecting a single body system, e.g. orthopedic,
digestive, etc. (4) multiple injuries incurred in action or
(5) multiple disabilities incurred as a prisoner of war.  It
is provided further that the existence or degree of
nonservice-connected disabilities or previous unemployability
status will be disregarded where the percentages referred to
in this paragraph for the service-connected disability are
met and in the judgment of the rating authority, such
service-connected disabilities render the veteran
unemployable. 38 C.F.R. � 4.16 (a)(2007).

A total disability rating may also be assigned on an
extraschedular basis, pursuant to the procedures set forth in
38 C.F.R. � 4.16(b), for veterans who are unemployable by
reason of service-connected disabilities, but who fail to
meet the percentage standards set forth in section 4.16(a).
Marginal employment shall not be considered substantially
gainful employment.  38 C.F.R. � 4.16(a) (2007).

In this case, the veteran's PTSD is his lone service-
connected disability.  It is now adjudicated to be 70 percent
disabling, thereby meeting the schedular criteria for TDIU.
Because the evidence as detailed above clearly shows the
veteran to be unemployable due to psychiatric symptoms
related to his PTSD, as per the repeated documents showing
him to be medically restricted from stressful situations
including employment as well as from driving throughout the
pendency of this appeal, entitlement to TDIU is warranted in
this instance.

Because TDIU is being granted there is no need to address
extraschedular considerations under 38 C.F.R. � 3.321 (2007).

ORDER

An evaluation of 70 percent, but no more, for PTSD is
granted, subject to the laws and regulations governing the
award of monetary benefits.

A TDIU is granted, subject to the laws and regulations
governing the award of monetary benefits.

____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

text:
Citation Nr: 0829000
Decision Date: 08/26/08    Archive Date: 09/02/08

DOCKET NO.  08-18 494	)	DATE
	)
	)

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

THE ISSUES

Entitlement to service connection for bilateral tinnitus.

REPRESENTATION

Appellant represented by:	Florida Department of Veterans
Affairs

ATTORNEY FOR THE BOARD

C. Eckart, Counsel

INTRODUCTION

The veteran served on active duty from December 1961 to April
1966.

This case comes before the Board of Veterans' Appeals (Board)
from a June 2007 rating decision from the St. Petersburg,
Florida Regional Office (RO) of the Department of Veterans
Affairs (VA), which, inter alia, denied the veteran's claim
seeking entitlement to service connection for bilateral
tinnitus.

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

REMAND

In his substantive appeal, VA Form 9, received in June 2008,
the veteran initially indicated he wanted a hearing before a
Veterans Law Judge at the RO (Travel Board hearing).
Thereafter, he sent a written document in July 2008,
confirming he still desires such a hearing.

Since such hearings are scheduled by the RO (See 38 C.F.R. �
20.704(a) (2007)), the Board is remanding the case for that
purpose, in order to satisfy procedural due process concerns.

Accordingly, this case is REMANDED to the RO for the
following action:

1.  The RO should schedule the veteran
for a Travel Board hearing before a
Veterans Law Judge, with appropriate
notification to the veteran and his
representative.  A copy of the notice to
the veteran of the scheduling of the
hearing should be placed in the record.

2.  After the hearing is conducted, or if
the veteran withdraws his hearing request
or fails to report for the scheduled
hearing, the case should be returned to
the Board for further review.

The purpose of this remand is to comply with due process of
law.  The Board intimates no opinion, either favorable or
unfavorable, as to the ultimate outcome of this case.   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. 2008).

_________________________________________________
A. BRYANT
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) (2007).