judge_norm: KATHLEEN K GALLAGHER

condition: psychiatric

text:
Citation Nr: 1212000
Decision Date: 04/02/12    Archive Date: 04/11/12

DOCKET NO.  08-35 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota

THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, previously characterized as borderline personality disorder and bipolar disorder.

REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. Heneks, Counsel

INTRODUCTION

The Veteran served on active duty from November 1988 to August 1989.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In August 2010, the Veteran presented testimony at a hearing conducted by the use of video conferencing equipment at the St. Paul RO before Kathleen K. Gallagher, a Veterans Law Judge (VLJ) sitting in Washington, D.C.  A transcript of this hearing is in the Veteran's claims folder.

In December 2010, the Board remanded the matter to obtain clinical records, afford the Veteran an opportunity to submit a release for private treatment records and identify additional VA treatment, and obtain a VA examination.  A VA examination was obtained in January 2011.  In February 2011, the National Personnel Records Center (NPRC) responded that there were no clinical records for the Veteran.  The Veteran has not returned completed releases for the private treatment records or identified any additional VA records.  Given the foregoing, the Board finds that VA has substantially complied with the Board's remand with regard to this appeal.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained.

2.  There is clear and unmistakable evidence that the Veteran had a mood disorder prior to his service entrance.

4.  There is clear and unmistakable evidence that the Veteran's pre-existing mood disorder was not aggravated during his service.

CONCLUSION OF LAW

An acquired psychiatric disorder was not incurred in active service.  38 U.S.C.A.
�� 1111, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.303, 3.304 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2011).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, 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.  This notice must be provided prior to an initial unfavorable decision 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).

Further, in Dingess v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim.  19 Vet. App. 473 (2006); see also 38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded.

The Board finds that the VCAA duty to notify was satisfied by a letter sent to the Veteran in September 2009.  In an April 2010 letter, the Veteran was provided with additional notice regard how to substantiate a claim for PTSD.  The letters addressed all of the notice elements and although they were provided after the initial adjudication of the Veteran's claim in February 2007, the claim was subsequently readjudicated in a June 2010 supplemental statement of the case (SSOC).  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case).  Therefore, the Board finds that VA has fulfilled its duty to notify under the VCAA.

VA has also satisfied its duty to assist the Veteran at every stage of this case.  All available service treatment records as well as all identified VA and private medical records, for which VA received a release, pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  Additionally, his Social Security Administration (SSA) disability records were also reviewed.  Pursuant to the remand, in a December 2010 letter, VA informed the Veteran that he needed to submit releases for the private treatment records that he had identified and also to identify any additional VA treatment that he had received since 1989.  He did not return any completed releases or identify an additional VA treatment.  In February 2011, the Veteran was informed that VA was unable to obtain clinical records from Balboa Hospital.  He informed VA in March 2011 that he did not seek any treatment at Balboa Hospital.  Thus, all identified VA and private treatment records for which the Veteran completed a release have been associated with the claims file.  38 C.F.R. � 3.159(c)(1).

Pursuant to the Board's remand, a VA examination with respect to the claim was obtained in January 2011.  38 C.F.R. � 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of the service and post-service medical records in the Veteran's claims file.  It considered all of the pertinent evidence of record, to include the Veteran's service and post-service records and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed.  There is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. � 3.159(c)(4).

VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a February 2008 SOC (statement of the case) and November 2008, June 2010, and January 2012 SSOCs, which informed them of the laws and regulations relevant to his claim.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.

LAW AND ANALYSIS

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. � 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. � 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

In relevant part, 38 U.S.C. � 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent."  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. � 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159(a)(2).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A.
� 1111.  This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted.  The term "noted" denotes only such conditions as are recorded in examination reports.  History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition.  38 C.F.R. �� 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted.  First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service.  Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service.  VAOPGCPREC 3-2003 (July 16, 2003).

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence).  It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable".  Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part).  Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004); 38 U.S.C.A. � 1153.

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established.  Black's Law Dictionary 1067 (5th ed. 1979).  Thus, where the presumption of sound condition is rebutted, the veteran is not entitled to service connected benefits because it has been shown that his disability pre-existed service and was not aggravated in service.  See Wagner, 370 F.3d at 1094-1096.  In such cases, where the presumption of sound condition at entrance to service cannot be rebutted, the assumption of the fact for which the presumption stands -- that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection -- must be assumed as a matter of law.  Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case.  Rather, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection.  See Wagner, 370 F.3d at 1094-1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence).

Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease."  38 U.S.C.A. � 1153; 38 C.F.R. � 3.306(a).  For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. � 3.306(b).  Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. � 3.306(b).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. � 3.306(b)(1).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disability.

The Veteran contends that he developed bipolar disorder during service which he continues to have presently.  He asserts that he was initially misdiagnosed with borderline personality disorder while in service and that the diagnosis should have been bipolar disorder.  Most recently during his August 2010 hearing, the Veteran reported that he developed a psychiatric disability as the result of several incidents during service.  He testified that he had trouble with recruits while in boot camp that he found physically threatening.  He testified that he had been harassed during boot camp.  The Veteran also reported that he witnessed a private boat/yacht explode while serving on board the U.S.S. Peleliu.  Additionally, he indicated that the U.S.S. Peleliu had an electrical fire.  During the evacuation, the Veteran fell on the stairs while carrying a stretcher and had to be rescued.  He testified that these incidents led to his diagnosis of bipolar disorder.  Although it is unclear whether the Veteran is also asserting that he has post traumatic stress disorder (PTSD) as a result of these events, his claim will be broadly considered as an acquired psychiatric disability.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.)

The presumption of soundness applies in this case.  There was no indication of any psychiatric disability on the Veteran's November 1988 entrance examination.  Therefore, the Board must address whether the presumption of soundness has been rebutted.  First, the Board will address whether there is clear and unmistakable evidence that shows that a psychiatric disability existed prior to service.

The evidence of record indicates that the Veteran had a psychiatric history prior to his service entrance.  In this regard, his service personnel and treatment records reflect that the Veteran had received infractions for using alcohol prior to his service entrance.  The Veteran reported that in September 1986, he failed a breathalyzer test and received a minor consumption ticket.  In March 1988, he failed a field test and received a driving under the influence (DUI) ticket.  During service, he received an unauthorized absence from July 5, 1989 to August 9, 1989, and then was returned to his base by military personnel.  He was treated at the Long Beach VA facility in August 1989 for diagnoses of polysubstance abuse and borderline personality disorder.  The Veteran was initially brought to VA for evaluation following a suicide attempt.  It was noted that approximately 38 days prior to his admission he was told that he would be discharged from the Navy secondary to an ankle problem.  He was placed in transient quarters at the Naval Base until he left for a 34 day unauthorized period.  The Veteran reported that his plan was to "have a good time before I killed myself."  He reported that he had nothing to live for if he was going to be kicked out of the Navy.

Additionally, this record reflected that the Veteran had a prior psychiatric history.  He reported that he had a past suicide attempt in 1985 by jumping through a glass window on impulse, which resulted in lacerations to one wrist.  The Veteran stated that he had felt depressed since the ninth grade and has been writing a journal of suicidal ideation and ruminations since that time.  He also had a history of bizarre activity to include trying to burn down his apartment, which he reported that he enjoyed.  He had a family history of alcoholism in his mother and father and bipolar disorder in his sister.  The Veteran admitting to abusing multiple drugs and alcohol.  The examiner stated that the Veteran displayed the criteria for borderline personality disorder and was at a very high risk for acting out.  It was recommended that the Veteran be separated from the Navy.  The Veteran was separated from the Navy due to a personality disorder.

After his separation from service, the Veteran was initially treated for drug dependence, not a psychiatric disability.  He was treated from August to September 1989 at the Minneapolis VA facility and was given a final diagnosis of drug dependence, continuous type.  The Veteran was admitted with a 12 year history of alcohol and drug abuse dependence.  He reported that he first used alcohol at age eight and reported the regular use of alcohol and a history of use of cocaine, LSD, and other chemicals.  The records reflect that the Veteran had an assessment of r/o bipolar affect v. major depression, alcohol dependence, polysubstance abuse, recent trauma (rape), and adjustment reaction with depressed mood during his hospitalization.  Additionally, the Veteran reported while hospitalized that there was lots of sexual abuse in the military and that some of his ship mates had made overtures to him.  He also reported that he was sexually assaulted three months earlier but did not provide details.  At the time of his release, it was not clear whether he was a psychiatric patient as another problem (in addition to drug dependence) or whether his somewhat depressed mood and his uncontrollable reactions were the result of his excessive use of drugs since the age of eight, with the latter theory favored.

The Veteran has had numerous psychiatric and drug treatment admissions since his separation from service.  The records reflect that the Veteran has been treated on numerous occasions following suicide attempts, for drug and alcohol abuse/dependence, and has been diagnosed with a variety of psychiatric disabilities as well as personality disorders.  On several occasions, the Veteran reported physical and verbal abuse by his father and sexual abuse by his grandfather during his childhood.

In August 2007, private physician Dr. J.C.H. indicated that he had treated the Veteran for the past 20 months for bipolar affective disorder type I and opiate dependence.  Dr. J.C.H. opined that the Veteran developed bipolar disorder while serving in the Navy.  Dr. J.C.H. interviewed the Veteran about his past history and reviewed his past medical records.  It was noted that according to the Veteran, he developed the symptoms of sleeplessness, increased goal-directed behaviors, and paranoid delusions while serving in the military.  Dr. J.C.H. added that as a consequence of the incapacitating symptoms the Veteran made a suicide attempt and spent the last few months of his time in the Navy as an inpatient in a psychiatric hospital and was then discharged from the Navy due to "failure to adjust to military life."  He continued that a few days after returning home, the Veteran was hospitalized for acute psychosis and the differential diagnosis was bipolar affective disorder versus drug induced psychosis.  Dr. J.C.H. reasoned that given that the Veteran's symptoms have since then persisted despite several periods of prolonged sobriety from illicit drugs, it become clear in retrospect that the Veteran was suffering from bipolar affective disorder and that this condition was clearly present at the time of his release from the Navy.  Dr. J.C.H. stated that after careful consideration of all available data, the Veteran did develop bipolar affective disorder during the time of his Navy service and that this condition, not "failure to adjust to military life" led to his prolonged psychiatric hospitalization prior to his military discharge.

The Board does not find Dr. J.C.H.'s opinion persuasive.  The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background.  Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993).  In this regard, Dr. J.C.H. indicated that he based his opinion partly on the Veteran's reported history, which the Board does not find credible.  Specifically, the Veteran's report that he was discharged from the Navy for failure to adjust to military life is directly contradicted by his service personnel records.  As reflected above, he was separated from service for a personality disorder.  Additionally, although Dr. J.C.H. recorded the Veteran's contention that he attempted suicide as a result of incapacitating symptoms of sleeplessness, increased goal-directed behaviors, and paranoid delusions, the August 1989 record reflects that he attempted suicide after finding out he was going to be separated from the Navy due to a pre-existing ankle disability.  Moreover, Dr. J.C.H.'s reasoning that the Veteran's symptoms have persisted despite several periods of prolonged sobriety from illicit drugs, is also directly contradicted by the medical evidence of record.  For example, A December 1994 private treatment record from C.R. showed that the Veteran had used alcohol and marijuana since age 13, LSD from age 15 to 17, Valium from age 16 to 25, cocaine since age 17, crack and heroin since age 26, and crystal since age 26.  An October 2004 private treatment record from H.C.M.C. reflected that the Veteran had a history of multiple failed attempts at sobriety from both opiate containing pain medications and heroin.  He had a history of IV heroin dependence, history of methadone maintenance, and pain medications containing opioid dependence.  The diagnoses included opioid dependence and polysubstance dependence.  There is no indication in the record, which spans from 1989 to the present, that the Veteran has ever had a "period of prolonged sobriety from illicit drugs."  In fact, even Dr. J.C.H. stated that he had treated the Veteran for the past 20 months for opioid dependence.  Thus, because the Board finds that reasoning that Dr. J.C.H. relied upon in supporting his opinion is directly contradicted by the objective evidence of record, the Board affords his opinion little probative value.  Bloom v. West, 12 Vet. App. 185, 187 (1999) (The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion.")  Black v. Brown, 5 Vet. App. 177, 180 (1995) (Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.)

In October 2007, the Veteran underwent a VA examination.  During the examination, the Veteran reported that he was physically abused by his father and sexual molested by his grandfather when he was about 10 years old.  The Veteran disputed the 1989 VA report that he attempted suicide in 1985, but instead contended that he actually jumped through a window at age four.  The Veteran acknowledged suicidal ideation as a teen but denied attempting suicide prior to the military.  He also disputed the report of fire setting as at teen.  The Veteran also denied that he was raped in the Navy but instead stated that another Veteran exposed himself to the Veteran and that he auditioned for a pornographic film and engaged in consensual homosexual sex at that time.  He reported hospitalizations after overdosing in 1989, 2000, and 2003 and 17 to 20 psychiatric hospitalizations.  Following examination, the diagnoses were bipolar disorder I; polysubstance dependence; and personality disorder NOS, with antisocial and borderline features.  The examiner stated that the Veteran appears to be an unreliable historian.

The examiner opined that the Veteran's bipolar disorder did not first manifest itself as borderline personality disorder in service and that it was not caused by military sexual trauma.  The examiner reasoned that the Veteran appeared to have had an onset of affective symptoms well before military service, as indicated in his self report and August 1989 Long Beach VA record.  In particular, the examiner referenced the suicidal ideation as a teenager, suicide attempt in 1985 while jumping through a window, and setting fire to his apartment as evidence of antisocial personality disorder.

With regard to sexual trauma causing bipolar disorder, the examiner observed that experiencing sexual trauma is not established as a causal factor for bipolar disorder in the psychological research literature.  The examiner added that the Veteran had a genetic predisposition for bipolar disorder and substance abuse, in that his sister had bipolar disorder and committed suicide and his parents both had a history of alcoholism.

In January 2010 after reviewing the claims file, the same examiner who conducted the October 2007 VA examination added that bipolar disorder is an Axis I mental disorder, thus an entity entirely separate and apart from borderline personality disorder, which is an Axis II mental disorder.

In December 2010, the Board remanded for another opinion  The examiner was asked to address whether there was clear evidence demonstrating that a psychiatric disability existed prior to his service entrance and whether it was clear that it was not aggravated during service.

In January 2011, the Veteran had another examination by a different VA examiner.  Following examination and review of the claims file, the examiner diagnosed bipolar current depression, polysubstance dependency, and personality disorder NOS cluster B traits.  In addressing whether the Veteran had a disability prior to service, the examiner noted the 1989 VA record which stated that the Veteran attempted suicide in 1985 by jumping through a window on impulse and that he had lacerations on his wrist as a result of that, that he had been depressed since the ninth grade and had been writing a journal of suicidal ideations and ruminations, and that he tried to burn down his apartment building.  The examiner observed that although the Veteran denied that he attempted suicide prior to the military and reported that instead at age four he hurt his wrist going through glass, he could not explain why the hospital report would say that it was a suicide attempt.  The examiner emphasized that throughout the assessment the Veteran was not forth coming and his reports frequently contradicted that of his hospital records.  For example, he denied that he was chemically dependent and claims that he has not had problems with heroin since the 1990s other than using heroin for suicide attempts.  However, the examiner pointed out that the record indicated multiple problems with heroin dependency and severe use in the 2000s.  The Veteran also suggested that he had a security clearance while in service but there is no indication of a clearance in his record.

The examiner reasoned there is no logical reason the hospital would report that the Veteran attempted suicide in 1985 and that he reported ongoing thoughts and journaling about suicide throughout high school unless that is what he reported in 1989.  She added that the Veteran's explanation for his wrist scar, his inability to explain why the 1989 record would state that he had attempted suicide in 1985, and his inconsistent reporting of his heroin use raises concerns regarding the Veteran's current denial of his suicide attempt.  The hospital report of the suicide attempt provides evidence that the Veteran was experiencing a mood disorder prior to service and that he did not report this mood disorder or suicide attempt when entering service.  The examiner concluded that there was clear evidence that the Veteran had a mood disorder prior to entering the military service.

In addressing whether the military aggravated the Veteran's pre-existing mood disability, the examiner noted that the Veteran has reported that he was sexually assaulted in the military and has also reported that he engaged in consensual sex with another man.  During the current interview, the Veteran reported that he was manipulated into being sexual and that he was scared during the homosexual encounter.  The examiner pointed out that the Veteran did not indicate to the hospital staff at the time of his admission to the VA in August 1989 that he had issues concerning a sexual assault or issues around a homosexual encounter.  Further, the examiner stated that there was no supporting evidence that the Veteran's experiences in the military had or has an effect on the course of the Veteran's bipolar disorder.  The trigger for his suicidal thoughts and intentions in 1989 was that he would be discharged from the service due to his pre-existing ankle problems.  The Veteran had difficulties throughout his life and his illness has progressed in a manner that would be expected from someone with bipolar disorder, personality disorder, and heroin dependency.  Thus, the examiner concluded that the Veteran's military service did not aggravate the course of his bipolar disorder.

The Board affords great probative value to the October 2007/January 2010 and January 2011 VA examiners' opinions.  They are based on an examination of the Veteran and complete review of his claims file.  Both were conducted by licensed psychologists which clinical expertise with psychiatric disabilities.  Importantly, the examiners provided reasoning and cited to objective evidence of record when rendering their opinions.  Thus, the Board finds them to be persuasive.

After considering the forgoing, the Board concludes that there is clear and unmistakable evidence to rebut the presumption of soundness to show that the Veteran did have a mood disorder prior to his service entrance.  Specifically, the Board agrees with the January 2011 VA examiner's reasoning that there is no logical reason that the VA facility in August 1989 would report that the Veteran attempted suicide in 1985, that he reported ongoing thoughts and journaling about suicide throughout high school, and attempted to burn down his apartment unless that is what the Veteran reported in 1989.  The Board does not find the Veteran's reports to the contrary credible.  As the examiner pointed out, the Veteran has provided conflicting information about the severity of his drug use, to include even denying that he has a chemical dependency problem despite the evidence dating from 1989 to the present indicating that he has.  He has also provided inconsistent information about the details of the sexual assault, ranging from rape to consensual sex.  The Board finds that the 1989 records should be afforded the most probative value because they were created closest in time to the Veteran's service and also were recorded with the objective of determining the origins of the Veteran's mental state at that time.  See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also Lilly's: An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  The Board finds the examiner's conclusion that there is clear evidence that the Veteran had a pre-existing mood disorder to be highly probative because her conclusion is based on her clinical expertise as a psychologist, review of the evidence of record, and assessment of the Veteran's credibility, with which the Board agrees.

Having found clear and unmistakable evidence that the Veteran had a pre-existing mood disorder, the Board must show by clear and unmistakable evidence that the preexisting mood disorder was not aggravated by service.  The Board is persuaded by the January 2011 VA examiner's conclusion that there is no supporting evidence that the Veteran's experiences in the military had an effect on the course of his bipolar disorder.  The Board finds it significant that the examiner stated that the Veteran's bipolar disorder has progressed in a manner that would be expected from someone with bipolar disorder, personality disorder, and heroin dependency.  Thus, even if the Veteran did experience the stressful events he described during his military service, the examiner nevertheless concluded that they had no lasting effect on the progression of his bipolar disorder.  Essentially, the Veteran's hospitalization in August 1989 was due to the natural progress of his pre-existing mood disorder.  See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004); 38 U.S.C.A.
� 1153.  Therefore, the Board concludes that there is clear and unmistakable evidence that the Veteran had a pre-existing mood disorder that was not aggravated during his military service.  As such, the presumption of soundness has been rebutted and service connection must be denied.  38 C.F.R. � 3.303.

ORDER

Entitlement to service connection for an acquired psychiatric disability, previously characterized as borderline personality disorder and bipolar disorder, is denied.

____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: JOY A MCDONALD

disposition: granted

condition: respiratory

disposition: remanded

text:
Citation Nr: 1214000
Decision Date: 04/17/12    Archive Date: 04/27/12

DOCKET NO.  09-47 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska

THE ISSUES

1.  Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma.

2.  Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy.

3.  Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma.

4.  Entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy.

5.  Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Veteran represented by:	John S. Berry, Esq.

ATTORNEY FOR THE BOARD

David Traskey, Counsel

INTRODUCTION

The Veteran had active service from March 1952 to March 1955.  This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of July 2009 by the Department of Veterans Affairs (VA) Lincoln, Nebraska, Regional Office (RO).

The issues of (1) entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma; (2) entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy; and (3) entitlement to service connection for bilateral hearing loss, are addressed in the remand portion of the decision below and are remanded to the RO.

FINDINGS OF FACT

1.  A rating decision in August 2002 denied the claims to reopen service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy.  The Veteran was notified of this decision and provided his appellate rights, but did not perfect an appeal.

2.  The evidence of record submitted since the August 2002 rating decision includes VA treatment records, private treatment records, and lay statements.

3.  The evidence submitted since the August 2002 rating decision was not previously of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claims of service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy, with VA's assistance.

CONCLUSIONS OF LAW

1.  Evidence submitted to reopen the claim of entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, is new and material, and therefore, the claim is reopened.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. � 3.156 (2011).

2.  Evidence submitted to reopen the claim of entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy, is new and material, and therefore, the claim is reopened.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. � 3.156 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2011).  The Board is taking action favorable to the Veteran by reopening the claims of entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy.  Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered as this decision poses no risk of prejudice to the Veteran.

The Veteran contends that he is entitled to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy.  The Veteran originally filed a service connection claim for residuals of a lumbar laminectomy in August 1971.  The RO denied the claim of entitlement to service connection for residuals of a lumbar laminectomy in rating decisions dated November and December 1971.  The Veteran was notified of these decisions and provided his appellate rights, but did not perfect an appeal.  Thus, these decisions are final.  38 U.S.C.A. � 7105.

In February 2002, the Veteran sought to reopen service connection for a back disability.  He also sought service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma.  The RO denied the Veteran's claim to reopen service connection for residuals of a lumbar laminectomy in a rating decision dated August 2002 on the grounds that he failed to submit new and material evidence.  Specifically, the RO acknowledged that the Veteran had a currently diagnosed low back disability, but indicated that none of the evidence of record linked this disability to his period of active service.  Similarly, the RO denied the Veteran's service connection claim for a respiratory disorder on the grounds that there was no evidence of record that such a disability was incurred in or caused by his period of active service.  The Veteran was notified of this decision and provided his appellate rights, but did not perfect an appeal.  Thus, this decision is final.  38 U.S.C.A. � 7105.

The Veteran most recently sought to reopen his service connection claims for residuals of a lumbar laminectomy and a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, in May 2009.  The RO denied the claim to reopen service connection for these disabilities in a rating decision dated July 2009 on the grounds that the Veteran failed to submit new and material evidence.  Specifically, the RO found that there was no evidence showing a currently diagnosed respiratory disorder or lumbar spine disability that was incurred in or caused by the Veteran's period of active service.  The Veteran was notified of this decision and provided his appellate rights.  He perfected this appeal.

RO decisions are not binding on the Board.  Consequently, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claims.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted).  As the August 2002 RO rating decision is the last final disallowance with respect to the claims to reopen, the Board must review all of the evidence submitted since that time to determine whether the Veteran's claims of entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy, should be reopened and readjudicated on a de novo basis.  38 U.S.C.A. �� 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).

A finally decided claim will be reopened in the event that new and material evidence is presented.  38 U.S.C.A. � 5108.  "New" evidence means existing evidence not previously submitted to VA.  "Material" evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156; see also, Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (finding a standard that would require reopening if the newly submitted evidence along with the other evidence of record, combined with VA assistance raised a reasonable possibility of substantiating the claim).

The evidence of record at the time of the August 2002 rating decision consisted of service treatment records, service personnel records, private treatment records, VA treatment records and examination reports, and lay statements.  Service treatment records associated with the claims file were negative for a diagnosis of or treatment for a respiratory disorder or a lumbar spine disability.  There was also no evidence of such within one year after discharge from service.

Associated with the claims file is a private December 1970 history and physical examination report.  The Veteran reported low back and bilateral leg pain stemming from an incident in 1967 when the Veteran fell off of a six foot ladder and landed on his buttocks.  The Veteran was hospitalized, prescribed bed rest, and his condition eventually improved until he re-injured his back in September 1970 while lifting a 50 pound item from the freezer.  The Veteran subsequently reported unrelenting back pain with right lower extremity radiation.  He underwent a bilateral lumbar laminectomy in December 1970.  See operative report.

The Veteran was afforded a VA examination in October 1971.  According to the Veteran, he sustained a back injury in 1953 while on duty.  He reported treatment for severe low back and leg pain at Camp Pendleton, including several weeks of limited duty and use of an elevated lift in his shoe.  A physical examination was essentially unremarkable except for a lumbar laminectomy scar.  An x-ray of the lumbar spine was interpreted to show evidence of a previous lumbar laminectomy at S1.

Also included in the claims file is a private treatment letter from T.N., M.D. dated November 1988.  The Veteran sought private care for problems with asthma and chronic upper respiratory difficulties.  By the Veteran's own account, his respiratory problems began in the early 1980s following a bout of pneumonia and a sinus infection which required hospitalization.  The Veteran's past social history was significant for smoking from the teen years until approximately age 40.  The assessment was chronic airway obstruction, probably related to both previous cigarette smoking and a post-viral asthma.  Dr. N. found little evidence that allergic factors played a significant role in this process and attributed the Veteran's nasal symptoms predominantly to "a post-turbinectomy syndrome."  Subsequently dated private and VA treatment records reflected continued treatment or hospitalization for exacerbations of chronic obstructive pulmonary disease and asthma.

The Veteran sought additional private care from McKenzie Chiropractic in January 1994 for radiating low back pain.  Subsequently dated private treatment records from this provider showed evidence of intercurrent low back injuries or exacerbations while shoveling snow, golfing, lifting poles, gardening, and from overuse.  See records dated January 1995, January 1996, September 1997, December 1998, May 1999, and June 2000.  X-rays of the Veteran's lumbar spine taken in August 1999 were interpreted to show facet imbrication degenerative changes at L4-5, lateral spurring at L2-4, and grade I spondylolisthesis at L5.  Follow-up lumbar spine x-rays taken in February 2001 showed subluxation on the left at L5 and S1.

The evidence submitted subsequent to August 2002 includes additional VA treatment records and examination reports, private treatment records, and lay statements.  Magnetic resonance imaging of the Veteran's lumbar spine showed progressively worsening neural foraminal stenosis, spondylosis, and spondylolisthesis.  See reports dated August 2004, September 2006, and August 2009.  Also included in the claims file are several private treatment records from the Rejuvenation Center which pertained to the Veteran's participation in physical therapy sessions designed to improve strength and flexibility in the back and hips.  Of particular note, a December 2006 treatment note indicated that the Veteran injured his back over 30 years prior to this episode of care after he fell off of a horse.  He reported continued symptoms since that time.

The Veteran was afforded a VA sinus examination in August 2009.  His past medical history was significant for a tonsillectomy (1953) as well as chronic obstructive pulmonary disease and asthma for "many years."  The diagnosis was chronic obstructive pulmonary disease and asthma.  A notation on the examination report indicated that the Veteran was told by his primary care provider that his chronic obstructive pulmonary disease and asthma were residuals of his tonsillectomy.

E.T., M.D. submitted a statement in support of the Veteran's claim dated August 2010.  According to Dr. T., the Veteran had longstanding asthma and chronic obstructive pulmonary disease, as well as chronic lumbar spine degenerative disc disease.  The Veteran's past medical history was significant for pneumonia and back pain in service, according to Dr. T.  Dr. T. also stated that the Veteran's past tonsillectomy and adenoidectomy had nothing to do with his current medical problems.  The Veteran subsequently underwent a lumbar spine fusion at L4-S1 in January 2011.

In July 2011, the Veteran was advised of the steps that VA took in an unsuccessful attempt to secure pertinent service treatment records from Camp Pendleton and the National Personnel Records Center.  A memorandum included in the claims file indicated that the medical facility at Camp Pendleton had no records pertaining to the Veteran, while the National Personnel Records Center had no additional records pertaining to the Veteran other than those previously associated with the claims file.

The Veteran was afforded a VA respiratory examination in September 2011 for the purpose of determining the relationship, if any, between the Veteran's respiratory disorder and his service-connected tonsillectomy residuals.  The diagnosis was chronic obstructive pulmonary disease.  According to the examiner, however, this disability was "less likely as not" caused by, the result of, or aggravated by the service-connected tonsillectomy residuals.  In support of this conclusion, the examiner noted that there was no supporting available evidence relating that a tonsillectomy can result in the development or aggravation of chronic obstructive pulmonary disease.  See also, October 2011 addendum (addressing the issue of aggravation).

The Veteran was also afforded a VA spine examination in September 2011 for the purpose of determining the relationship, if any, between the Veteran's lumbar spine disability and his service-connected tonsillectomy residuals.  The diagnosis was lumbar spine fusion.  According to the examiner, there were no complications from the tonsillectomy, nor was there evidence of unusual injury to the spine during or recovering from the tonsillectomy.  Therefore, the examiner indicated that it was "less likely as not" that the lumbar spine disability was related to or the cause of the Veteran's service-connected tonsillectomy residuals.

Service connection may be granted for disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131 (West 2002).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. � 3.303(a) (2011).

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. � 3.303(d). According to 38 C.F.R. � 3.309(a) (2011), service connection for certain chronic disabilities, including arthritis or brochiectasis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service.

The Veteran's service connection claims for a lumbar spine disability, claimed as residuals of a lumbar laminectomy, and a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, was previously denied because there was no evidence of record linking these disabilities to the Veteran's period of active service or any incident therein.  The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim will be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material.  See Shade, 24 Vet. App. at 117.  Moreover, a claim will be reopened if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.

The evidence described above, to include lay statements, private treatment records, VA treatment records and examination reports, and Dr. T.'s August 2010 statement, in particular, is newly submitted evidence and suggests that when combined with VA assistance, a reasonable possibility exists of substantiating the claims.  Shade, 24 Vet. App at 116-18.  Accordingly, the claims of entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy, and a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, are reopened.

ORDER

New and material evidence having been submitted, the appeal to reopen a claim of entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, is granted to this extent only.

New and material evidence having been submitted, the appeal to reopen a claim of entitlement to service connection for a lumbar spine disability, claimed as residuals of a lumbar laminectomy, is granted to this extent only.

REMAND

The Veteran contends that he is entitled to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy.  In light of the Board's decision to reopen these claims, VA examinations are needed on remand to determine the etiology of these disabilities and their relationship to service, if any.  Moreover, the Veteran's representative asserted in January 2012 that the VA examinations of record were inadequate for evaluation purposes because they failed to address the issue of entitlement to service connection on a direct basis.

Furthermore, in light of the fact that the Veteran was afforded VA examinations in September 2011 for the purpose of determining the relationship between the currently diagnosed respiratory disorder, lumbar spine disability, and the service-connected tonsillectomy residuals, the Veteran must be provided with the information and evidence needed to substantiate his service connection claims for a respiratory disorder, claimed as chronic obstructive pulmonary disease and asthma, and a lumbar spine disability, claimed as residuals of a lumbar laminectomy, as secondary to a service-connected disability.  Additionally, a careful review of the September 2011 VA spine examination report reflects that the examiner failed to provide an opinion on the issue of aggravation.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes).  Accordingly, this issue must be addressed on remand.

Finally, the Veteran also filed a service connection claim for bilateral hearing loss.  A review of the claims file indicated that the Veteran was scheduled for a VA audiology examination in connection with this current claim.  The scheduled examination was not performed and a notation on the examination worksheet indicated that the Veteran cancelled the examination and did not wish to pursue this claim.  However, VA has received no request from the Veteran requesting withdrawal of this claim and it is unclear from the record the extent to which VA contacted or attempted to contact the Veteran to resolve this discrepancy.  On remand, therefore, the RO must contact the Veteran and ask him to indicate whether he still wishes to pursue his claim of entitlement to service connection for bilateral hearing loss.  Based on his response, the RO must take any appropriate action.

Accordingly, the case is remanded for the following action:

1.  The RO must contact the Veteran and ask him to indicate whether he still wishes to pursue his claim of entitlement to service connection for bilateral hearing loss.  Based on his response, the RO must take any appropriate action.  The RO must also advise the Veteran of the information and evidence needed to substantiate his service connection claims on a secondary basis, to include as secondary to a service-connected disability.

2.  The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues currently on appeal.  Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources.  Regardless of the Veteran's response, the RO must obtain all relevant VA medical records from September 2011 to the present.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence.  The Veteran and his representative must then be given an opportunity to respond.

3.  After the above development is completed, the RO must make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to determine the etiology of the currently diagnosed respiratory disorder and its relationship to service, if any.  In providing the etiological opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  All pertinent symptomatology and findings must be reported in detail.  All indicated testing must be conducted.  Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements, the examiner must express an opinion as to whether the Veteran's currently diagnosed respiratory disorder is related to the Veteran's military service, to include as due to any incident therein.  Please note: The examiner must provide etiological opinions for the Veteran's chronic obstructive pulmonary disease and asthma.  If the manifestations of each separate disability cannot be distinguished, the examiner must so state.  The examiner must also comment on the significance, if any, of the Veteran's past smoking history.

The examiner must provide a complete rationale for all opinions expressed.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.
4.  The RO must make arrangements with the appropriate VA medical facility for the Veteran to undergo a VA examination to determine the etiology of the currently diagnosed lumbar spine disability and its relationship to service, if any.  In providing the etiological opinion, the examiner is reminded that VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service.  The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed.  The examiner must specify the dates encompassed by the Virtual VA records that were reviewed.  All pertinent symptomatology and findings must be reported in detail.  All indicated testing must be conducted.  Following a review of the evidence of record, an examination of the Veteran, and with consideration of the Veteran's statements, the examiner must express an opinion as to whether the Veteran's currently diagnosed lumbar spine disability is related to the Veteran's military service, to include as due to any incident therein.  If the manifestations of each separate disability cannot be distinguished, the examiner must so state.  The examiner must also comment on the significance, if any, of the Veteran's post-service back injuries described above.  Additionally, the examiner must provide an opinion as to whether the currently diagnosed lumbar spine disability is proximately due to or aggravated by the Veteran's service-connected tonsillectomy residuals.

The examiner must provide a complete rationale for all opinions expressed.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.  The report prepared must be typed.

5.  The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. �� 3.158, 3.655 (2011).  In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

6.  After the requested examinations have been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand.  An examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once.

7.  Thereafter, the RO must ensure that the development above has been completed in accordance with the remand orders, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims.  If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

8.  THIS APPEAL HAS BEEN ADVANCED ON THE BOARD'S DOCKET.  Expedited handling is required.  38 U.S.C.A. � 7107(a)(2) (West 2002); 38 C.F.R. � 20.900(c) (2011).

No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: DAVID L WIGHT

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. 2011).

text:
Citation Nr: 1215000
Decision Date: 04/25/12    Archive Date: 05/03/12

DOCKET NO.  11-31 075	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUES

1.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to exposure to herbicides.

2.  Entitlement to service connection for sleep apnea syndrome, to include as due to exposure to herbicides.

3.  Entitlement to service connection for Barrett's esophagus (claimed as throat cancer), to include as due to exposure to herbicides.

REPRESENTATION

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

ATTORNEY FOR THE BOARD

V. Chiappetta, Associate Counsel
INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from September 1963 to August 1967.

This matter is before the Board of Veterans' Appeals (the Board) on appeal of an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which in part, denied the Veteran's service-connection claims for COPD, sleep apnea, and Barrett's esophagus.  The Veteran disagreed with these determinations, and perfected an appeal as to all three issues.

In a phone conversation occurring on March 21, 2012, the Veteran confirmed his desired to file additional service-connection claims for the following conditions: a birth defect of his first child (resulting in her death), a thyroid condition, a skin condition, and a prostate condition, all to include as due to exposure to herbicides.  See the Veteran's May 12, 2012 Report of General Information.  The RO has yet to adjudicate these claims in the first instance.  As such, they are referred to the RO for appropriate action.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board does not have jurisdiction of issues not yet adjudicated by the RO].

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

REMAND

The Veteran is seeking entitlement to service connection for COPD, sleep apnea and for Barrett's esophagus [also claimed as throat cancer].  On his substantive appeal, the Veteran specifically requested a hearing before a member of the Board at a local VA office.  See the Veteran's November 2011 VA Form 9.  To date, no hearing has been scheduled.  The Veteran's representative notified the Board of this fact in an April 2012 Informal Hearing Presentation, and has requested that the Board remand all three issues on appeal so that the requested hearing may be scheduled.  See the Veteran's April 2012 Informal Hearing Presentation, page 2.

The Veteran has a right to request a hearing before the issuance of a Board decision. Bernard v. Brown, 4 Vet. App. 384, 393 (1993) [citing 38 U.S.C.A. � 7104(a) (West 1991)]; 38 C.F.R. �� 3.103(a) and (c), 19.9, 19.25, 20.704 (2011).

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

VBA should schedule the Veteran for a BVA Travel Board hearing at the RO in Indianapolis, Indiana.  The Veteran should be notified of the date, time and place of such a hearing by letter mailed to his current address of record.

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

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. 2011).

_________________________________________________
DAVID L. WIGHT
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) (2011).