judge_norm: JONATHAN B KRAMER

text: Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for a penile deformity is denied.

condition: psychiatric

text:
Citation Nr: 1534000
Decision Date: 08/10/15    Archive Date: 08/20/15

DOCKET NO.  13-00 835	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to compensation benefits pursuant to 38 U.S.C.A. � 1151 for a penile deformity, claimed as Peyronie's disease / penile induration, due to November 2004 VA corrective surgery.

2.  Entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety, and insomnia disorder, as secondary to a penile deformity.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran, his former spouse, and his sister

ATTORNEY FOR THE BOARD

K. Hubers, Associate Counsel

INTRODUCTION

The Veteran had active service from February 1971 to February 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) located in Winston-Salem, North Carolina.

The Board notes that the original rating decision addressed the Veteran's claim of entitlement to service connection for Peyronie's disease, but, during the pendency of his appeal, he clarified that his claim was being made under 38 U.S.C. � 1151.  The October 2012 Statement of the Case (SOC) properly adjudicated the claim under 38 U.S.C. � 1151.

In December 2014, the Veteran testified via videoconference in a hearing before the undersigned Veterans Law Judge.  The record contains a transcript of the hearings.

FINDINGS OF FACT

1.  The Veteran did not have an additional disability subsequent to the November 2004 surgical treatment to treat Peyronie's disease.

2.  The Veteran's diagnosed acquired psychiatric disorders are not related to and have not been aggravated by any of the Veteran's service-connected disabilities.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. � 1151 for a penile deformity have not been met.  38 U.S.C.A. �� 1151, 5107(b) (West 2014); 38 C.F.R. �� 3.102, 3.361, 17.32 (2014).

2.  The criteria for service connection for an acquired psychiatric disorder, including as secondary to a service-connected condition or under 38 U.S.C.A. � 1151, have not been met.  38 U.S.C.A. � 1110, 1151, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.311, 3.361, 17.32 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. � 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

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.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Criteria and Analysis:  1151 Claim for Penile Deformity

There are three elements required to establish benefits pursuant to 38 U.S.C.A. � 1151:  (a) additional disability or death; (b) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (c) a finding of fault or a finding of an unforeseen circumstance.   Each element is a prerequisite for the subsequent element.

To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped.  VA considers each involved body part or system separately.  38 C.F.R. � 3.361(b).

Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section.  38 C.F.R. � 3.361(c).  The VA treatment must be the actual cause of the additional disability or death.  38 C.F.R. � 3.361(c)(1).  The VA treatment cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. � 3.361(c)(2).  The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  38 C.F.R. � 3.361(d).  In addition, negligence may be established by showing that the VA-provided treatment is the proximate cause of a disability and the treatment was provided without informed consent.  38 C.F.R. � 3.361(d)(1)(ii) (2014).

Here, the Veteran claims that the November 2004 surgery was (a) undertaken without informed consent, (b) was performed negligently, and (c) resulted in unforeseen complications.  To prevail under any of these theories, the Veteran first has to establish an additional disability.  38 U.S.C. � 1151.  The Veteran's claim fails on that element.

VA treatment records establish that the Veteran injured his penis sometime in or around August 2002.  See August 2003 VA Emergency Department Note ("Intraurethral tear 1 yr ago, still had pain on occasion."); September 2003 VA Nursing Note ("Patient c/o excessive pain and discomfort to penis and it is not getting better."); September 2003 VA Progress Note ("c/o having had a tear inside his penis which created scar tissue.  Now he [has] pain on erection."); October 2003 VA Progress Note ("Pt states approx. one yr ago he developed mid shaft pain in his penis and now when he gets an erection it is painful and crooked.").  He saw a VA urologist in December 2003 who reviewed the Veteran's treatment options and specifically noted:  "Resolution of pain by surgery unlikely."  According to March 2004 VA treatment records, the Veteran's discomfort in his penis and scrotum continued to worsen.  See also April 2004 VA Urology Consult ("Penile pain and upward curve of penis.  Dwells on 'pain, pain, pain' in rt testis.  Erects are painful.  Wife continues to say how much pain he's in.").  An April 2004 VA mental health note documents the Veteran's report that he had not been sexually active for the past two years due to the chronic pain of his penis.  The Veteran decided to have surgery.

An October 2004 VA Urology Note documents the Veteran's complaints of "pain with erections, inability to have intercourse."  The Veteran described a severe dorsal curvature with a plaque on his proximal dorsal phallus.  The urologist "offered him surgery with very explicit description of the goals and limitations of surgery including persistent curvature (incomplete straightening) d/t severity of curve, further curvature at a later date, need for more surgery, penile shortening, bleeding, infection, lack of sensation on penis after surgery, etc."  The Veteran chose to proceed.

A November 2004 VA treatment record documents that Dr. C.Y. discussed the benefits, risks, and available alternatives (including no treatment).  The risks identified included bleeding, infection, anesthesia, shortening of penis, incomplete straightening of penis and decreased sensation in penis.  That same month the Veteran underwent surgery.  The November 2004 VA post-surgery note indicates that a penile plication was performed to correct dorsal curvature with erection.  The surgeon was Dr. B.Y. and the attending was Dr. H.H, in addition Dr. C.Y. assisted.  The noted indicated there were no complications.  A December 2004 operative report describes the procedure in detail.  A post-surgery December 2004 VA Urology Note indicates that the Veteran was "doing very well", that his wounds were healing "very nicely", and "his penis [was] straight."

Subsequent treatment records document that the Veteran has, subsequently, developed penile curvature and pain.  See, e.g., March 2010 VA Urology Consult (documenting complaints of chronic pain and erectile dysfunction); February 2009 VA Mental Health Note (documenting Veteran's statement that pain and curvature is worse after the surgery, though erections are better).  In short, the post-surgery treatment records document symptoms and functional limitations (e.g. pain, penile curvature, and inability to have intercourse) that were present prior to the surgery and that were discussed with the Veteran as potential risks.

In order to answer the medical questions at issue, the RO sought and obtained a urologist's opinion.  The urologist opined that the November 2004 surgery was performed within the standard of care, is a widely accepted procedure, and was not experimental (then or now).  The urologist also opined that the procedure was performed in standard fashion and without complication.  Therefore, the urologist concluded, "his care met or exceeded an acceptable standard."  Importantly, the urologist's report indicates that the November 2004 surgery did not result in additional disability.  See June 2012 Urologist's Report (indicating "N/A" in response to question:  "If the VA care caused additional disability, please give an opinion...").  The Board finds the urologist's opinions are entitled to probative weight.

The Veteran has submitted a February 2015 private opinion which states, in full:

I have reviewed the records for [the Veteran].  It is my professional opinion that he is having an unforeseeable amount of penile and perineal discomfort related to previous surgery related to the Peyronie's diagnosis in 2004.

The Board finds this opinion provides no probative weight in establishing that the Veteran actually experienced an additional disability subsequent to the November 2004 surgery.  The opinion does not explicitly state that there is any additional disability, merely that there is unforeseeable discomfort subsequent to surgery.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted).

In any case, to the extent that the opinion implies increased pain after the surgery, it does not explain that conclusion, does not acknowledge or address the fact that pre-surgery treatment records document the same symptoms and functional limitations that are documented post-surgery, and does not discuss the fact that the Veteran's pain had been increasing leading up to surgery.  The opinion also fails to discuss or account for the documented the fact that, in the immediate post-surgery period, the Veteran had decreased curvature and better erections.  The Board gives the opinion no probative weight in support of the Veteran's claim.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (discussing elements of an opinion that provide probative weight and noting that an unexplained conclusion alone is entitled to little or no probative weight).

As no additional disability has been identified, the questions of actual causation, proximate causation, informed consent, and an unforeseen event essentially become moot.   Even so, the competent medical opinions of record (including chiefly the June 2014 urology opinion) establish that the surgery was performed according to the appropriate standard of care and that there was no unforeseen event or complication during the surgery.  Although the February 2015 private opinion is couched in terms of "unforeseeable...discomfort", it does not discuss whether that discomfort was greater than prior to surgery or was likely to be corrected by surgery.  The medical records document that the Veteran was told prior to the surgery that the surgery may not resolve his pain and also document that his pain (including pre-surgery) was unusual for his diagnosed condition.  In other words, the February 2015 private opinion does not provide much, if any, probative weight in favor of finding that there was an event not reasonably foreseeable, rather than that the Veteran has experienced an unusual amount of pain due to his condition (though not caused by any fault on the part of his surgeons or by any unforeseeable complication or event during surgery).

The Board also acknowledges the Veteran's allegations that the surgery that was performed was not the surgery to which he consented, that the risks that the surgery entailed were not adequately explained to him, and that he consented to one surgeon but a different physician actually performed the procedure.  Even assuming these allegations were true, the lack of an additional disability defeats the claim.  Moreover, the contemporaneous medical records contain extensive documentation of the informed consent provided to the Veteran.  The medical documentation is more credible and probative than the Veteran's recollections years later in the context of a claim for benefits after he was disappointed in the results of the surgery.  Entitlement to service connection under 38 U.S.C. � 1151 due to lack of informed consent is not warranted on this record.

While the Veteran underwent surgery at a VA facility in November 2004, after which he suffered pain, erectile dysfunction, and penile curvature (though pain and curvature were reduced during the immediate post-surgery period), the greater weight of the evidence is against finding that he sustained any qualifying additional disabilities under the provisions of 38 U.S.C.A. � 1151.  See also 38 C.F.R. � 3.358.

The Board also recognizes the Veteran has sincerely contended that he has additional disabilities related to his November 2004 surgery.  Although he is certainly capable of describing the history in this case as well as his subjectively experienced increase in symptoms after the surgery, his statements are of limited probative value on the determinative legal questions.  For example, he has blamed the surgery for his inability to have sexual intercourse, but the treatment records (e.g. April 2004 VA progress note) establish that he had not been able to have sexual intercourse for well over a year prior to the surgery.  Due to conflicts between his recollections and the medical record and the obvious biases (including financial bias and unconscious hindsight biases) that could affect his recollections regarding comparative severity of his condition, the Board finds that the Veteran is not a reliable historian regarding the type and severity of symptoms he experienced pre-surgery and post-surgery, particularly in comparison to the contemporaneous documentation of his symptoms in the medical records.

Moreover, he is not competent to opine on issues such as whether his post-surgery symptoms, to the extent he subjectively experienced worsening, were due to the natural progression of his condition rather than due to any negligence or unforeseeable complications during surgery.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.").  In this case, the objective medical evidence, and the VA opinions based thereon, outweigh the Veteran's opinions.

Considering the record as a whole, the Board concludes that the competent and probative evidence preponderates against a finding that any qualifying additional disability (to include increased pain, curvature of the penis, or erectile dysfunction) resulted from the Veteran's VA surgery in November 2004.  Instead, the greater weight of the evidence is in favor of finding the post-surgery symptoms did not amount to or result in additional disability.  Thus, benefits under 38 U.S.C.A. � 1151 are not warranted in this matter.  38 U.S.C.A. � 1151; 38 C.F.R. � 3.361(d)(1).  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, supra.

Acquired Psychiatric Disorder as Secondary to Penile Deformity

The Veteran seeks service connection for an acquired psychiatric disorder as secondary to his penile deformity.  See, e.g., December 2014 Board Hearing Transcript at pp. 2-3 (discussing claim and acknowledging that claim is only viable if the 1151 claim for penile deformity succeeds).  He has not alleged that he is entitled to direct service connection (to include under 38 U.S.C. � 1151 directly), nor does the record support any such claim.

In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other.  Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).  Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Here, the alleged cause of the Veteran's acquired psychiatric disorders are symptoms and impairments resulting from a penile deformity.  See, e.g., December 2014 Board Hearing Transcript at pp. 2-3.  Because, as discussed above, the penile deformity is not service-connected (on any basis, to include under 38 U.S.C. � 1151), the criteria for secondary service connection cannot be and are not met.  See 38 C.F.R. � 3.310 (a claim for secondary service connection requires that a service-connected disability either caused or aggravated the claimed condition).

The evidence is not in equipoise and, instead, the weight of the evidence is against the Veteran's claim.  Gilbert, 1 Vet. App. at 53-56.  Accordingly, entitlement to service connection for an acquired psychiatric disorder as secondary to penile deformity is denied.

Duties to Assist and Notify

The RO official or Veterans Law Judge (VLJ) who conducts a hearing must fulfill two duties to comply with 38 C.F.R. � 3.103(c)(2).  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Id.  Here, during the December 2014 hearing, the undersigned VLJ discussed with the Veteran additional evidence necessary to substantiate the claims.  The Veteran's testimony establishes that he understood the elements of his claims, the evidence necessary to substantiate them, and that he could identify or submit any evidence that might assist him to substantiate the claims.  Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  The Board finds that, consistent with Bryant, the undersigned VLJ has complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error.

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided the required notice in a May 2012 letter which advised the Veteran of the criteria for service connection pursuant to 38 U.S.C. � 1151.  VA has provided additional notice and has identified for the Veteran the unsatisfied elements of successful claims in a statement of the case and at his Board hearing.  As the contents of the notice provided to the Veteran fully comply with the requirements of 38 U.S.C.A. � 5103 and 38 C.F.R. � 3.159, the Board concludes that VA satisfied its duties to notify the Veteran.  In fact, the record, including the Veteran's testimony at his Board hearing, demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claims at issue.  See Shinseki v. Sanders, 556 U.S. 396, 409-13 (2009) (holding prejudicial error analysis applies in context of claims for VA benefits).

VA must also make reasonable efforts to assist the appellant 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 claims.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159 (2013).

VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The RO associated with the claims file the Veteran's VA treatment records and private medical records.  The Veteran has not identified any other relevant records aside from those that are already in evidence.  The VA has made every reasonable effort to obtain all records relevant to the Veteran's claim.

VA obtained a June 2012 medical opinion addressing the relevant medical questions in this case.  The opinions obtained are adequate as the urologist reviewed the Veteran's pertinent medical history and provided opinions with an solid factual bases and a sufficient rationale.  See Stefl v. Nicholson, 21 Vet.  App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  While the Veteran has expressed disagreement with the conclusions of the urologist, he has not made any allegations or provided any argument that the June 2012 opinion was inadequate.  In addition, the record contains a private opinion and voluminous medical records directly bearing on the dispositive medical issues in this matter.

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist.  38 U.S.C.A. �� 5103 and 5103A; 38 C.F.R. � 3.159.

ORDER

Entitlement to compensation benefits pursuant to 38 U.S.C.A. � 1151 for a penile deformity is denied.

Entitlement to service connection for an acquired psychiatric disorder as secondary to a penile deformity is denied.

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

Department of Veterans Affairs


series: legacy

judge_norm: KATHLEEN K GALLAGHER

disposition: dismissed

disposition: granted

text: Entitlement to a TDIU is granted.

disposition: remanded

text: Initially, the Board notes that the record reflects that there are outstanding records which are potentially pertinent to the claims on appeal. [is remanded]

text:
Citation Nr: 1602000
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  12-20 402	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to a rating in excess of 30 for posttraumatic stress disorder (PTSD) with major depressive disorder, prior to February 21, 2014, and in excess of 50 percent thereafter.

2.  Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction.

3.  Entitlement to a rating in excess of 10 percent for right upper extremity neuropathy.

4.  Entitlement to a rating in excess of 10 percent for left upper extremity neuropathy.

5.  Entitlement to a rating in excess of 10 percent for right lower extremity neuropathy.

6.  Entitlement to a rating in excess of 10 percent for left lower extremity neuropathy.

7.  Entitlement to an initial rating in excess of 10 percent for coronary artery disease prior to October 10, 2006, and in excess of 30 percent thereafter.

8.  Entitlement a compensable rating for bilateral hearing loss.

9.  Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU).

10.  Entitlement to an initial rating in excess of 30 percent for diabetic nephropathy.

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

J. Henriquez, Counsel

INTRODUCTION

The Veteran had active duty service from January 1966 to October 1969.

These matters come before the Board of Veterans' Appeals (Board) an appeal from July 2010 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In September 2015, the Veteran provided testimony at a video hearing before the Board with regards to issues 1 through 9.  A transcript of the hearing is of record.

In addition to issues 1 through 9 above, the Veteran also perfected an appeal on the issue of entitlement to an initial rating in excess of 30 percent for diabetic nephropathy.  This issue arises from a June 2014 rating decision.  In an August 2015 VA Form 9, the Veteran requested a hearing before the Board at the RO.  However, in October 2015 correspondence, the Veteran withdrew the hearing request.   As the Veteran also perfected this claim, the Board will address this issue below.

Lastly, the Board notes that in December 2015 correspondence, Christopher Loiacono informed the VA that his office was representing the Veteran in his claim for disability benefits.  Later that month, VA sent the Veteran a letter notifying him of the correspondence received from Mr. Loiacono and that he did not have a power of attorney (POA) selected.  A VA Form 21-22a was enclosed for the Veteran to complete and return to the VA.  The Veteran did not fill out a new power of attorney form, and the record does not reflect that he has otherwise indicated that he wishes to be represented.  Therefore, the Board concludes that the Veteran does not wish to be represented in this matter and will proceed with the adjudication of his claims.

The issues of entitlement to increased ratings for PTSD with major depressive disorder, diabetes mellitus with erectile dysfunction, right and left upper extremity neuropathy, right and left lower extremity neuropathy, coronary artery disease and diabetic nephropathy, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  At a September 2015 Board hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal with respect to the issue of entitlement to a compensable rating for bilateral hearing loss.

2.  Resolving all reasonable doubt in the favor of the Veteran, the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his education and industrial background.

CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal for entitlement to a compensable rating for bilateral hearing loss by the Veteran have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

2.  The criteria for entitlement to a TDIU are met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.340, 3.341, 4.16 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Bilateral Hearing Loss Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2015).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R.
� 20.204.  In the present case, the Veteran indicated during the September 2015 Board hearing that he wished to withdraw his appeal for entitlement to a compensable rating for bilateral hearing loss.  Hence, there remain no allegations of errors of fact or law concerning this particular portion of the appeal for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this portion of the appeal and it must be dismissed.

TDIU Claim

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).  VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience.  38 C.F.R. 3.340, 3.341, 4.16.  Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19.

Under section 4.16(b) of VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. � 4.16(a), the RO may submit such case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. � 4.16(b).  The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, Compensation and Pension Service.  Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, Compensation and Pension Service, but the Board may not grant a total rating in the first instance.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board and the Court.

For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Here, the Veteran is service-connected for PTSD with depressive disorder, rated at 50 percent; coronary artery disease, rated at 30 percent; diabetic nephropathy, rated at 30 percent; diabetes mellitus with erectile dysfunction, rated at 20 percent; neuropathy of the right upper extremity, rated at 10 percent; neuropathy of the left upper extremity, rated at 10 percent; neuropathy of the right lower extremity, rated at 10 percent; neuropathy of the left lower extremity, rated at 10 percent; bilateral hearing loss, rated as noncompensable; tinnitus, rated at 10 percent; and residuals of a laceration to the right rib cage, rated as noncompensable.  The combined evaluation for these disabilities is 90 percent. As such, the minimum schedular criteria for TDIU are met.

The Veteran contends that his service-connected disabilities render him unemployable.  In particular, he alleges that due to the severity of his PTSD he has difficulty being around people and that the neuropathy of his extremities make it very difficult for him to move around.

In a February 2014 VA diabetes mellitus examination report, the examiner noted that the Veteran's diabetic peripheral neuropathy would affect his ability to stand and walk.  That examination report also provided a diagnosis of diabetic nephropathy which is manifested by edema and lethargy due to renal dysfunction.

In considering all the evidence, the Board finds that the Veteran is, for all practical purposes, precluded from substantially gainful employment.  While VA examination reports are of record, there is no combined opinion addressing the cumulative effect of the Veteran's service-connected disabilities.  On the other hand, the overall medical evidence indicates that the Veteran's service-connected disabilities and in particular, the neuropathy disabilities associated with his diabetes mellitus are of such severity as to preclude employment.  In reaching this determination, the Board notes that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  Moreover, when the Board looks at the totality of the circumstances, including the combined 90 percent rating, it is apparent that the usual amount of success in the Veteran overcoming the handicap of disabilities would be prevented by the combination and severity of his service-connected disabilities.  See 38 C.F.R. � 4.15.

Based upon the foregoing, the Board finds that the evidence is at least in equipoise with regard to whether the Veteran's service-connected disabilities render him unemployable.  Therefore, the benefit of the doubt should be given to the Veteran, and TDIU should be granted.  See 38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

ORDER

The appeal for entitlement to a compensable rating for bilateral hearing loss is dismissed.

Entitlement to a TDIU is granted.

REMAND

The Board observes that further development is required prior to adjudicating the Veteran's remaining claims on appeal.

Initially, the Board notes that the record reflects that there are outstanding records which are potentially pertinent to the claims on appeal.

It was noted at the September 2015 hearing the Veteran receives current treatment for his service-connected disabilities (in particular, PTSD with depressive disorder and diabetes mellitus), at the VA Medical Center (VAMC) in Winston-Salem.  However, the record reflects that only treatment records dating up to April 2014 from the VAMC in Salisbury and Winston-Salem are of record.  On remand, all treatment records from the VAMC from Salisbury and Winston Salem dating from April 2014 to the present should be associated with the claims file.

The Veteran also testified at the September 2015 hearing that he was hospitalized twice last year at the Novant Health Forsyth Medical Center for treatment of his diabetes mellitus.  He stated that during this hospitalization he also received treatment for his coronary artery disease.  Treatment records from the Novant Health Forsyth Medical Center are not of record and should be obtained on remand.

The record also reflects that the Veteran last underwent VA examinations for his PTSD with depressive disorder and diabetes mellitus with associated neuropathy disorders in February 2014.  He has not undergone a VA examination for his coronary artery disease.  During his September 2015 hearing, the Veteran indicated that his PTSD with depressive disorder, diabetes mellitus with associated neuropathy of the upper and lower extremities, and his coronary artery disease have all increased in severity.  VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  Based on the foregoing, further VA examinations are necessary in order to determine the current level of severity of the Veteran's service-connected PTSD with major depressive disorder, diabetes mellitus with erectile dysfunction, right upper extremity neuropathy, left upper extremity neuropathy, right lower extremity neuropathy, left lower extremity neuropathy and coronary artery disease.

As the Veteran's diabetic nephropathy is a complication of his diabetes mellitus, the Board finds that further examination of this disorder is also warranted.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding treatment records from the Salisbury and Winson-Salem VAMC.

2.  Obtain all treatment records from the Novant Health Forsyth Medical Center.

3.  The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected PTSD with major depressive disorder.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability.  The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important 'that each disability be viewed in relation to its history [,]' 38 C.F.R. � 4.1 (2015), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

4.  The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected diabetes mellitus with erectile dysfunction, right upper extremity neuropathy, left upper extremity neuropathy, right lower extremity neuropathy, left lower extremity neuropathy and diabetic nephropathy.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of each of the Veteran's service-connected disabilities.  The examiner should report all signs and symptoms necessary for rating the Veteran's disabilities under the appropriate rating criteria.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important 'that each disability be viewed in relation to its history [,]' 38 C.F.R. � 4.1 (2015), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

5.  The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected coronary artery disease.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability.  The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important 'that each disability be viewed in relation to its history [,]' 38 C.F.R. � 4.1 (2015), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

6.  Following the above, the RO should review all the relevant evidence and adjudicate the claims.  If the benefits are not granted, an appropriate SSOC should be issued.  The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims file is returned to the Board.

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 2014).

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

Department of Veterans Affairs


judge_norm: BRADLEY W HENNINGS

disposition: denied

condition: hypertension

text:
Citation Nr: 1603000
Decision Date: 02/01/16    Archive Date: 02/11/16

DOCKET NO.  13-27 207	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs

ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel

INTRODUCTION

The Veteran served on active duty from February 1966 to September 1969.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In his substantive appeal, the Veteran requested a hearing before a member of the Board, but in August 2014, the Veteran withdrew this request.

FINDING OF FACT

The Veteran's hypertension did not have onset in service or within one year of service and was not caused or permanently aggravated by the Veteran's active military service, to include his service connected diabetes mellitus or PTSD.

CONCLUSION OF LAW

The criteria for entitlement to service connection for hypertension have not been met.  38 U.S.C.A. �� 101, 1110, 1112, 1131 (West 2014); 38 C.F.R. �� 3.303, 3.307, 3.309 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. �� 1110, 1131 (West 2014); 38 C.F.R. � 3.303(a) (2015).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. �� 1101, 1112, (West 2014 ); 38 C.F.R. �� 3.307, 3.309 (2015).

Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder.  38 C.F.R. � 3.310 (2015).  Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury.  38 C.F.R. � 3.310.  In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. � 3.322 (2015).

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.  38 C.F.R. � 3.303(d) (2015).

In this case, the Veteran is seeking entitlement to service connection for hypertension, to include as secondary to his service connected diabetes mellitus and PTSD.

The Veteran's service treatment records are negative for any treatment for or diagnosis of hypertension, and there is no evidence that the Veteran was diagnosed with hypertension within one year of separation from service.  At a March 2014 VA examination, the Veteran reported that elevated blood pressure readings were first noted in the late 1970s or early 1980s, but according to an April 2010 VA examination report, the Veteran was not diagnosed with hypertension until 1991 and VA outpatient treatment records also show that the Veteran reported being diagnosed with hypertension around 1992.

In April 2010, a VA examiner concluded that the Veteran's hypertension was neither caused nor aggravated by his diabetes mellitus, noting that the Veteran was diagnosed with hypertension almost twenty years prior to the onset of his diabetes and he does not have any diabetic nephropathy which would aggravate his hypertension.

In March 2014, another VA examiner concluded that it is less likely than not that the Veteran's service connected PTSD caused or permanently aggravated his hypertension.  The examiner noted that some in the medical community have suggested a relationship between PTSD and hypertension, speculating that the repeated adrenergic arousals of the sympathetic nervous system in the flight-or-fight reactions related to PTSD can contribute to development of hypertension; however, this theory is unproven.  The examiner explained that at this time, the preponderance of medical evidence does not support that PTSD causes or aggravates hypertension.  The examiner further observed that the Veteran is morbidly obese, which is a risk factor for hypertension, as is sleep apnea and alcohol intake.  Therefore, even assuming that the examiner was not using the correct standard to evaluate the medical evidence, he found that the Veteran was suffering from multiple other risk factors regarding his hypertension.

Based on all the above evidence, entitlement to service connection for hypertension must be denied.  While it is unclear exactly when the Veteran first developed hypertension, there is no evidence that this condition manifest during service or within one year of service.  Even the earliest reported evidence of elevate blood pressure was not until a decade after the Veteran's separation from service.

Additionally, the preponderance of the evidence does not support the Veteran's contentions that his hypertension was caused or permanently aggravated by his service connected diabetes mellitus or PTSD.

The April 2010 VA examiner concluded that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus because it developed approximately two decades before his diabetes and his diabetes does not cause nephropathy which could aggravate his hypertension.  The March 2014 VA examiner explained that while there has been speculation that PTSD can cause or aggravate hypertension, at this time the preponderance of the clinical research does not support this theory.  In this regard, the benefit-of-doubt rule applies to assessments of scientific evidence or theories.  Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  Thus, although the Board may consider the extent to which a scientific theory is accepted in the scientific community when evaluating the evidence of record, it cannot demand a level of acceptance greater than the level of proof required by the benefit-of-the -doubt rule.  Id.  However, the Board finds that the above opinion does not place the evidence in relative equipoise regarding a relationship between this Veteran's PTSD and his hypertension, particularly given the other risk factors as discussed by the examiner.  See Gilbert, 1 Vet. App. at 55; 38 C.F.R. � 3.102.

As for the Veteran's own opinions regarding the etiology of his claimed condition, he has not demonstrated that he has any medical knowledge or training.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran's hypertension was caused or permanently aggravated due to his service connected disabilities is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to little to no probative weight.  The Board gives greater weight to the opinion of the VA medical examiners and the contemporaneous medical evidence.

For all the above reasons, entitlement to service connection for hypertension is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102 (2015).

The Duty to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. � 3.159 (2015).  Here, the Veteran was provided with the relevant notice and information prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  He has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file.  The Veteran was also provided with VA examinations which contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. � 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

ORDER

Entitlement to service connection for hypertension is denied.

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs


judge_norm: M HYLAND

text:
Citation Nr: 1604000
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  11-18 260	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for lupus erythematosus.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1989 to October 1989 and from October 1990 to May 1991, including service in Southwest Asia from December 1, 1990, to April 15, 1991.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).

The issues have been recharacterized to comport with the Veteran's claim and the medical evidence of record.  Specifically, in August 2009, the Veteran filed a claim for service connection for a multisymptom illness that she described as manifesting with fibromyalgia-like symptoms, joint and muscle pain, kidney disease, weight and hair loss, sleep disorder, headache, fatigue, lung infection, skin rashes, mouth and nose sores.  During the pendency of the appeal, the RO has adjudicated entitlement to service connection for each of these symptoms.  As discussed below, VA medical experts have attributed these symptoms to the Veteran's lupus.  Thus, in accord with the Veteran's claim and the medical evidence of record, the Board recharacterized the following issues as entitlement to service connection for lupus erythematosus: headaches; fibromyalgia; muscle pain in the hands; joint pain of the feet, hands, and knees; fatigue; weight loss; hair loss; a sleep disorder; a skin disorder; a kidney disability; a lung infection; and nose and mouth sores.

FINDINGS OF FACT

1.  A bilateral hearing loss disability has not been shown during the pendency of the appeal.

2.  The Veteran's lupus erythematosus is a medically unexplained chronic multi-symptom illness presumably related to her service in Southwest Asia.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. �� 1110, 5107 (West 2014); 38 C.F.R. �� 3.303, 3.385 (2015).

2.  The criteria for service connection for lupus erythematosus have been met.  38 U.S.C.A. �� 1110, 1112, 1117 (West 2014); 38 C.F.R. �� 3.303, 3.317 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. � 5103(a) (West 2014); 38 C.F.R. � 3.159(b) (5) (2015).  A standard September 2009 letter satisfied the duty to notify provisions.
VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. � 5103A (West 2014); 38 C.F.R. � 3.159(c).

The Veteran's service personnel records and post-service VA and private treatment records have been obtained.  The Veteran's service treatment records (STRs) are not available for review.  In September 2009 and November 2009, the National Personnel Records Center and Records Management Center indicated that the Veteran's STRs were not available.  In her June 2011 Substantive Appeal, the Veteran reported that she did not have hearing loss, but that she experienced tinnitus.  In June 2015, the RO denied entitlement to service connection for tinnitus.  As the Veteran was notified of her appellate rights and has not appealed, the issue of entitlement to service connection for tinnitus is not before the Board.  VA audiological examinations in in February 2010 and July 2010 revealed that the Veteran's hearing is within normal limits.  In view of this information, the Board finds that it is reasonably certain that the Veteran's STRs do not exist and that further efforts to obtain the records would not aid in establishing her claim for hearing loss as there is no evidence of a current hearing loss disability.  See 38 U.S.C.A. � 5103A(c); 38 C.F.R. � 3.159(c)(2).

The Veteran was provided VA medical examinations in February 2010 and July 2010.  The examinations, along with the expert medical opinions, are sufficient evidence for deciding the claim of entitlement to service connection for hearing loss.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  Thus, VA's duty to assist has been met.

Hearing Loss

The Veteran seeks service connection for hearing loss.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110 (West 2014); 38 C.F.R. � 3.303 (2015).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. � 3.303(d).

Generally, to establish service connection, a Veteran must show: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and   (3) a nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Hearing loss disability for VA purposes is defined by regulation.  For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385 (2015).

The Court has held that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F.3d 1328, 1332 (1997).

The Veteran filed a claim for service connection for hearing loss in August 2009.

A February 2010 VA audiological examination recorded puretone thresholds, in decibels, and controlled speech discrimination as follows:

HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
15
15
15
0
5
100
LEFT
15
15
10
0
0
100

A July 2010 VA audiological examination recorded puretone thresholds, in decibels, and controlled speech discrimination as follows:

HERTZ
CNC

500
1000
2000
3000
4000
%
RIGHT
20
15
15
0
5
100
LEFT
15
20
10
0
0
96

In her June 2011 Substantive Appeal, the Veteran reported that she did not have hearing loss.

The competent lay and medical evidence of record fails to show a hearing loss disability since VA received the Veteran's service connection claim for hearing loss in August 2009.  Audiological data gathered in February 2009 and July 2009 shows that hearing has been within normal limits during the pendency of the appeal.

In the absence of proof of a current hearing loss disability as defined by 38 C.F.R. � 3.385, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Accordingly, the preponderance of the evidence is against the claim and service connection for hearing loss is not warranted.

Lupus Erythematosus

The Veteran seeks service connection for lupus erythematosus, which she describes as manifesting with fibromyalgia-like symptoms, joint and muscle pain, weight and hair loss, sleep disorder, headache, fatigue, lung infection, skin rashes, mouth and nose sores.  The Veteran relates these symptoms exposure to hazardous materials during service the Southwest Asia.

The Veteran served in Southwest Asia from December 1, 1990, to April 15, 1991.  Because she served in the Southwest Asia Theater of operations after August 2, 1990, service connection may be established under 38 C.F.R. � 3.317 (2015).  Under 38 C.F.R. � 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016.  38 C.F.R. � 3.317(a)(1).

For purposes of 38 C.F.R. � 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.

A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases).  38 C.F.R. � 3.317(a)(2)(i).  The term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. � 3.317(a)(2)(ii).  Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. � 3.317(a)(3).

The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War Veterans.  Such revisions amend � 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses.  Significantly, the amendment reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).

In October 2007, the Veteran was diagnosed with lupus.

The Board finds that the medical evidence of record shows that the Veteran's lupus is a medically unexplained chronic multi-symptom illness as defined in 38 C.F.R. � 3.317(a)(2)(ii).  Medical literature indicates that lupus is defined by a cluster of signs and symptoms to include joint pain, fatigue, myalgia, weight loss, lupus nephritis, alopecia, skin lesions, nasal sores, headache, and pneumonitis, which are similar to the Veteran's overlapping fibromyalgia-like symptoms, joint and muscle pain, kidney disease, weight and hair loss, sleep impairment, headache, fatigue, lung infection, skin rashes, mouth and nose sores.  See VA medical opinion, dated October 2, 2011.  In October 2011, a VA medical expert opined that all of the Veteran's symptoms are related to lupus.  Significantly, in July 2010 and October 2011, two different VA medical experts affirmatively stated that lupus has no conclusive pathophysiology or etiology.  Additionally, the July 2010 VA examination report indicates that the Veteran's fatigue and pain are out of proportion to physical findings.  For these reasons, the Board finds that the Veteran's lupus is a medically unexplained chronic multi-symptom illness.  As such, the Veteran's lupus qualifies as a chronic disability under 38 C.F.R. � 3.317(a)(2)(i).

The Board also finds that signs and symptoms of the Veteran's lupus manifested to a degree of 10 percent or more prior to December 31, 2016.

In conclusion, the Veteran's lupus erythematosus is presumably related to her Southwest Asia service due to its nature and unknown etiology.  Thus, service connection for lupus erythematosus is warranted.

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for lupus erythematosus is granted.

____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


text:
Citation Nr: 1605000
Decision Date: 02/09/16    Archive Date: 02/18/16

DOCKET NO.  12-07 849	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

THE ISSUE

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

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Van Wambeke, Counsel

INTRODUCTION

The Veteran served on active duty from April 1969 to May 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The RO in Albuquerque, New Mexico, currently has jurisdiction of the claim.

The Veteran testified before the undersigned Veterans Law Judge in October 2014.  A transcript is of record.  In a March 2015 decision, the Board denied the claim for entitlement to service connection for PTSD and dismissed a claim for service connection for a right shoulder condition.

The Veteran appealed that portion of the Board's March 2015 decision that denied service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court).  In a November 2015 Joint Motion for Partial Remand (Joint Motion), which will be discussed below, the parties requested that the Court partially vacate and remand the Board's decision to the extent that it denied entitlement to service connection for PTSD.  In a November 2015 Order, the Court granted the Joint Motion.

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The Joint Motion indicates that not all of the Veteran's records from the Albuquerque Vet Center were obtained and that remand was warranted for VA to attempt to obtain any outstanding PTSD treatment records from this facility that postdate August or September 2009.  Review of the electronic record indicates that additional records from the Albuquerque Vet Center dated between February 2010 and April 2015 were associated with the record after the Joint Motion was issued, but it is unclear whether these comprise the Veteran's entire record.  In addition, the records obtained are not very detailed.  Given the findings in the Joint Motion, efforts should be made to obtain the Veteran's complete record of treatment from the Albuquerque Vet Center dated from September 2009 to the present.

The Joint Motion also determined that the Board must address whether the Veteran had PTSD at any point during the pendency of the claim, specifically considering the diagnoses of PTSD documented in 2009 and 2010 treatment records.  The records cited by the Joint Motion include a 2009 assessment of PTSD made by the Vet Center and provisional diagnoses of PTSD found in VA treatment records dated in 2009 and 2010.

Given the foregoing, the Board has determined that another VA examination is warranted in this case, with specific instruction to the examiner to indicate whether the Veteran met the DSM criteria for a diagnosis of PTSD, as required by VA regulations, at any time during the pendency of the claim if PTSD is not diagnosed.  Contemporaneous VA treatment records should also be obtained.

In correspondence received in April 2015, the Veteran indicated that he was in the process of getting benefits from the Social Security Administration (SSA).  The medical and legal documents pertaining to the Veteran's application for SSA benefits have not been associated with the claims folder.  The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records.  Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002).  On remand, efforts should be made to obtain these records.  38 C.F.R. � 3.159(c)(2).

The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. �� 3.158 and 3.655 (2015).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the Veteran's treatment records from the Albuquerque VAMC, dated since November 2015.

2.  Request the Veteran's complete record of treatment from the Albuquerque Vet Center dated from September 2009 to the present.  If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile.

3.  Request all medical and legal documents pertaining to the Veteran's application(s) for SSA disability benefits.  If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile.

4.  When the foregoing development has been completed, schedule the Veteran for a VA psychiatric examination.  The entire electronic record should be reviewed.  All necessary tests should be conducted and all clinical findings reported in detail.

The examiner is requested to provide an opinion as to whether the Veteran meets the DSM criteria for a diagnosis of PTSD.

If a diagnosis of PTSD is made, the examiner should provide an opinion as to whether it is it at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed PTSD had its onset during active service or is related to any in-service disease, event, or injury, to include the stressors previously reported by the Veteran, which are:
* being on post outside a village near Da Nang when a helicopter came so close that he thought it would hit him, causing him to fall down the stairs;
* seeing numerous body bags being loaded into cargo planes as soon as he landed in Vietnam;
* hearing gun fire and explosions and helicopters flying low on the way to his assigned unit after arrival; and
* seeing fellow Marines without limbs while in Guam after knee surgery.

If a diagnosis of PTSD is not made, the examiner should provide an opinion as to whether the Veteran met the DSM criteria for a diagnosis of PTSD prior to 2012.  The examiner must specifically address the 2009 assessment of PTSD made by the Albuquerque Vet Center and the provisional diagnoses of PTSD found in VA treatment records dated in 2009 and 2010.

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

5.  Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.

6.  Finally, readjudicate the claim.  If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond.  The case should then be returned to the Board for further appellate review, if in order.

The appellant has the right to submit additional evidence and argument on the matter 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 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 2014).

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

Under 38 U.S.C.A. � 7252 (West 2014), 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) (2015).


judge_norm: K J ALIBRANDO

condition: tbi

text:
Citation Nr: 1607000
Decision Date: 02/24/16    Archive Date: 03/01/16

DOCKET NO.  14-33 083	)	DATE
	)
	)

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

THE ISSUES

1. Entitlement to service connection for a traumatic brain injury (TBI).

2. Entitlement to service connection for Parkinson's disease, claimed as secondary to a traumatic brain injury.

3. Entitlement to a disability rating in excess of 20 percent for residuals of a left femur fracture.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M. Thomas, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from December 1960 to July 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, denied entitlement to service connection for a traumatic brain injury and Parkinson's disease, and entitlement to a disability rating in excess of 20 percent for residuals of a left femur fracture.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2015).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The issue of entitlement to a disability rating in excess of 20 percent for residuals of a left femur fracture is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran does not have a TBI and did not incur a TBI in service.

2. The Veteran's current Parkinson's disease was not caused by a TBI during service.

CONCLUSIONS OF LAW

1. The criteria for service connection for a traumatic brain injury have not been met. 38 U.S.C.A. �� 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304 (2015).

2. The criteria for service connection for Parkinson's disease, claimed as secondary to a traumatic brain injury, have not been met. 38 U.S.C.A. �� 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.            38 U.S.C.A. �� 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2015). Under the VCAA, 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;      (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. � 5103(a) (West 2014);     38 C.F.R. � 3.159(b) (2015).

In a March 2013 letter, the RO notified the Veteran of the evidence needed to substantiate the claims for entitlement to service connection for a TBI and Parkinson's disease, claimed as secondary to a TBI. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that the Veteran would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. � 5103A (West 2014);   38 C.F.R. � 3.159(c), (d) (2015). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. � 3.159(c)(4) (2015).

In this case, VA obtained the Veteran's service treatment records. The Veteran was afforded a VA examination in April 2013 as to the nature and etiology of any TBI and Parkinson's disease. For the reasons indicated below, that examination was adequate as to the claims being decided.

As such, the RO has provided assistance to the Veteran as required under
38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist in the development of the claim.

Laws and Regulations - Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. �� 1110, 1131 (West 2014); 38 C.F.R. � 3.303(a) (2015). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a) (2015).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. � 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. � 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Allen, 7 Vet. App. at 448. To prevail on the issue of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. � 5107(b) (West 2014); 38 C.F.R.
� 3.102 (2015).

Service Connection for a TBI - Analysis

The Veteran claims that he has a TBI as a result of a motor vehicle accident in service. The accident caused him to be thrown from a jeep and he sustained a head laceration.

The Veteran's service treatment records reflect that he was hospitalized following a motor vehicle accident in November 1962, and treated for a scalp laceration with no nerve or artery involvement. The service treatment records indicate that the Veteran did not lose consciousness after the accident, and there are no reports of neurological damage or symptoms. The scalp laceration was sutured. A week after the accident, the laceration of the left frontal parietal area was noted to be healed. No further notation or treatment relevant to the scalp laceration is contained in the service treatment records. The separation examination notes a healed scalp laceration, well-healed with no sequelae. The Board finds that the Veteran sustained a scalp laceration during service.

The Veteran was afforded a VA TBI examination in April 2013. The VA examiner opined that the Veteran does not have a TBI or residuals of a TBI. The VA examiner reviewed the Veteran's claims file, examined the Veteran, and gave a thorough medical history as related to the Veteran's in-service motor vehicle accident and injuries, as well as a history of the Veteran's currently-diagnosed Parkinson's disease. While the VA examiner found objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment, the examiner opined that these symptoms are not due to TBI, but instead due to the Veteran's Parkinson's disease and associated dementia. The VA examiner also found that the Veteran's judgment is severely impaired, but again opined that this is due to the Veteran's Parkinson's disease, and not a residual of a TBI. The examiner reported that the Veteran did not know the month, date, or year, had severely decreased motor activity due to apraxia, communication difficulties, and had moderately severe impaired visual spatial disorientation, but again attributed the symptoms to the Parkinson's disease and not a TBI. The VA examiner stated that the Veteran thinks he may have had a one second loss of consciousness, but noted that the credibility of this recollection is undermined by the Veteran's current severe dementia. The VA examiner opined that the Veteran does not have a TBI.

In providing a rationale for this opinion, the VA examiner stated that there is no clear documentation that the Veteran suffered any TBI. He stated that the service treatment records noted that upon arriving at the hospital after the accident, the Veteran was awake, alert, and had not suffered any loss of consciousness, despite the presence of a 4cm long laceration of the scalp. The laceration was sutured.  The VA examiner stated that the scalp laceration would have raised the concern and made evaluation for head injury a priority.  He noted that the service treatment records contained no noted alteration in consciousness, feelings of being dazed or confused, and nothing that would have changed his Glasgow Coma Scale, if it had been done at the time, from normal. The VA examiner noted that the Veteran remembers incidents up to the moment of the impact and right after the accident clearly at this time. He stated that there is no documentation of any nausea, nor any indication that anesthesia was of any concern for the Veteran. Finally, the examiner opined that this information from the Veteran's service treatment records is more reliable than the Veteran's recollection in light of his current moderate to severe dementia.

In a September 2013 Notice of Disagreement, the Veteran appeared to allege that the VA TBI examination is inadequate. The Veteran asserted that his claim was denied by the RO "due to an antiquated understanding of TBI criteria." He based this assertion on the rating decision's discussion of the Veteran's lack of loss of consciousness at the time of the motor vehicle accident in which he sustained a scalp laceration. He submitted two internet articles to support his assertion. Normally, medical articles or treatises can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222 (1999); Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and to not relate to the specific facts in a given veteran's claim. In the present case, the internet articles referenced fall into this category. Further, while these articles, taken together, highlight that loss of consciousness is not necessary for a TBI, they do not establish that the Veteran suffered a TBI during his in-service motor vehicle accident despite the fact that he did not lose consciousness. Moreover, the articles are not combined with an opinion of a medical professional. Therefore, this evidence is less probative than the VA examination as to the issue of whether the Veteran incurred a TBI during service.

The Veteran requested that the Board obtain an outside medical opinion on the nature and etiology of his TBI and Parkinson's disease claims, pursuant to 38 C.F.R.� 20.901(d). The Board finds that an independent expert medical opinion is not warranted by these claims. The Board has an adequate medical opinion from a competent medical professional in the April 2013 VA TBI examination, upon which it can decide the present claims. To the extent that the Veteran cites the internet articles, discussed above, as evidence that the April 2013 VA TBI examination report is inadequate, the Board notes that the examiner cited numerous reasons other than the Veteran's lack of a loss of consciousness to support his opinion that the Veteran did not have a TBI and reiterates that the internet articles submitted by the Veteran are not material to the issue of whether the Veteran incurred a TBI during service. As there is an adequate medical opinion in the record, obtaining another medical opinion from any source, including from an independent medical expert, would only serve to unnecessarily delay a decision on this claim.

The Veteran is competent to report symptoms that he may have experienced at any time. See Layno 6 Vet. App. 223, 225. Insomuch as the Veteran has attempted to establish a nexus through his own lay assertions, the Board finds that the Veteran is not competent to diagnose a TBI due to the medical complexity of the matter. See Jandreau, 492 F.3d 1372, 1377 n.4. Thus, the Veteran is not competent to render such a diagnosis.

After a review of all of the evidence of record, both lay and medical, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have a TBI. The April 2013 VA examiner reported that the Veteran did not have a TBI, despite having suffered a scalp laceration during a motor vehicle accident in service. This is the only competent evidence of record, and is highly probative. As there is no TBI, the Board does not reach the issue of a nexus with service.

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for a TBI, and the claim must be denied. As the preponderance of the evidence is against the claim of service connection for a TBI, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

Service Connection for Parkinson's Disease - Analysis

The Veteran does not contend that his Parkinson's disease is directly related to service.  Likewise, the evidence of record does not indicate that Parkinson's disease is directly related to service.  Service treatment records are silent for complaints of, a diagnosis of, or treatment for Parkinson's disease.  As noted in the April 2013 VA TBI examination report, the Veteran was diagnosed with Parkinson's disease in 2006, and had been having difficulties with movement and strength with some demoralization for about five years prior to that time. There are no notations of complaints, symptoms, treatment, or diagnoses of Parkinson's disease in the service treatment records, Parkinson's disease did not manifest until many years after service, and the Veteran did not contend that he had symptoms of this disease continuously since service. Accordingly, the Board will only address the theory of secondary service connection when deciding this issue, as this is the only theory raised by the Veteran or reasonably raised by the evidence of record.

As specified in the September 2013 Notice of Disagreement, the Veteran's only contention with regard to his Parkinson's disease is that it is secondary to the TBI. As the Board is denying entitlement to service connection for a TBI, entitlement to service connection for Parkinson's disease must be denied as a matter of law.
38 C.F.R. �3.310 (2015) (stating that entitlement to service connection is warranted for disability proximately due to or the result of service connected disease or injury).

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for Parkinson's disease under all theories advanced by the Veteran and reasonably raised by the evidence of record. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C.A. � 5107(b) (West 2014); 38 C.F.R. � 3.102 (2015).

ORDER

Entitlement to service connection for a traumatic brain injury is denied.

Entitlement to service connection for Parkinson's disease, claimed as secondary to a traumatic brain injury, is denied

REMAND

The Veteran is seeking a disability rating in excess of 20 percent for residuals of a left femur fracture. This disability is currently rated under 38 C.F.R. � 4.71a, Diagnostic Code (DC) 5255. This diagnostic code also considers symptoms of a knee or hip disability related to the femur disability. The Veteran was afforded an April 2013 VA examination as to the severity of his current knee and lower leg disorders. The April 2013 VA examination was adequate with regard to evaluating the knee, but did not include an evaluation of the severity of the Veteran's current femur and hip disabilities, which are included under DC 5255, and no other VA examination of the left leg or hip has been completed since the Veteran submitted the present claim for an increased disability rating. Therefore, the Board finds that a remand is necessary to obtain a VA examination as to the nature and severity of the Veteran's currently left femur and hip disabilities.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1. Obtain updated VA treatment records regarding the service-connected residuals of a left femur fracture and associate them with record.

2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left femur injury and any residuals or secondary disabilities, to include an evaluation of any hip issues related to the left femur injury.

3. After completion of the above and compliance with the requested action has been ensured, adjudicate the issues on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

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).

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 2014).

______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs