judge_norm: STEVEN D REISS

text:
��Citation Nr: 21017000

Decision Date: 03/24/21	Archive Date: 03/24/21

DOCKET NO. 14-40 708

DATE: March 24, 2021

ORDER

An effective date prior to August 1, 2012 for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied.

FINDING OF FACT

Prior to August 1, 2012, the preponderance of the evidence showed that the Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation.

CONCLUSION OF LAW

The criteria for an effective prior to August 1, 2012 for the grant of TDIU have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from September 1967 to April 1969, from June 1970 to December 1992.

This matter was previously before the Board in June 2018 when it was remanded for referral to the Director, Compensation Service for consideration of an award for TDIU prior to August 1, 2012 on an extraschedular basis.  In June 2020, the Board again remanded this issue for additional development.

Entitlement to an effective prior to August 1, 2012 for the grant of a TDIU.

TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more.  If there are two or more disabilities, there must 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.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. � 4.16 (a).\

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to:

The veteran's history, education, skill, and training;

Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. � 4.16  (a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities.  38 C.F.R. � 4.16(b).

1. In a February 2013 rating decision, the RO granted a TDIU, effective August 1, 2012.  Prior to this date, the Veteran service-connected disabilities did not meet the minimum schedular rating requirement for TDIU and the preponderance of the evidence shows that was he was not unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to that date.

The Veteran reported that he last worked in August 2009.  See August 2012 VA 8940, Veterans Application for Increased Compensation.

In June 2018, the Board remanded this issue for extraschedular consideration for TDIU prior to August 1, 2012.  In an April 2020 memorandum, the Director of Compensation Service determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to August 1, 2012.  See April 2020 VA Advisory Opinion.

In June 2020, the Board again remanded this issue to clarify and obtain information regarding the Veteran s previous employment.

In this case, the question for the Board is whether the Veteran was shown to be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to August 1, 2012.  The Board finds he was not.

As to educational history, the Veteran has completed one year of college.  See August 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.

As noted, the Veteran's service-connected disabilities did not meet the minimum percentage requirements for TDIU as set forth in 38 C.F.R. � 4.16 (a) for the period prior to August 1, 2012.  The Veteran s PTSD is rated at 50 percent from December 13, 2010; diabetes mellitus at 10 percent from December 9, 2005, and 20 percent from August 1, 2012; laryngeal cancer rated at 100 percent from September 14, 2009 and non-compensable from August 1, 2010.  The Veteran did not meet the minimum schedular rating for the requirement for a TDIU prior to August 1, 2012.

In the June 2020 Board remand, the Veteran was requested to provide employment information detailing dates of employment and the reasons he retired.  See June 2020 BVA Decision.  Specifically, in May 2006, the Veteran reported that he had two years before he could retire from the U.S. Postal Service (USPS), as noted in a May 2006 VA treatment record.  However, during a September 2011 VA examination, the Veteran reported that he was medically retired as a result of his service-connected throat cancer.

In addition, on the Veteran s August 2012 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full-time and became too disabled to work in August 2009.  However, a December 2009 VA examination report indicates that the Veteran reported that he had retired from USPS in October 2009.  See December 2009 C&P Examination Report.  The Veteran submitted correspondence that his employment information from the USPS is unavailable; however, that he last worked in 2009.  See September 2020 Third Party Correspondence.

The Veteran has provided no evidence that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to August 1, 2012.  As such, an earlier effective date for TDIU is not warranted and the appeal is denied.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Jacquelynn M. Jordan, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


series: legacy

judge_norm: A C MACKENZIE

judge_role: Veterans Law Judge

disposition: denied

text:
��Citation Nr: 21018000

Decision Date: 03/29/21	Archive Date: 03/29/21

DOCKET NO. 12-20 580

DATE:    March 29, 2021

ORDER

Entitlement to service connection for sleep apnea is denied.

FINDING OF FACT

The preponderance of the evidence does not support a finding that the Veteran s sleep apnea arose during or as a result of his active service, including as secondary to his service-connected insomnia disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 2003 to March 2007, including service in Southwest Asia.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veteran's request, a hearing before a Veterans Law Judge was scheduled for October 2012. However, the Veteran failed to appear for the hearing and provided no explanation for his absence. Thus, his hearing request is deemed withdrawn. 38 C.F.R. �� 20.702(d); 20.704(d).

In September 2018, this claim was remanded by the Board for a VA examination to determine the nature and etiology of the claimed condition, including whether the condition was aggravated by his service-connected insomnia. The Veteran was afforded a VA examination in May 2019, and the examiner provided etiology opinions addressing causation, secondary causation, and aggravation. The Board denied the Veteran s claim for service connection in a January 2020 decision.

Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an October 2020 decision, the Court vacated the Board s January 2020 decision, granted the parties  Joint Motion for Remand (JMR), and remanded the matter to the Board for action consistent with the ruling. The claim is now once again before the Board.

The JMR indicates that the May 2019 post-remand VA examination did not discuss aggravation. The Board has reviewed the May 2019 VA examination report and is unable to find any basis for this determination. In September 2018, the Board remanded for an aggravation opinion, and as noted elsewhere, the May 2019 VA examination opinion fully addressed aggravation in accordance with the Board s remand instructions. As the Board finds no deficiency in the record, and as a remand for an additional opinion would be an action both cumulative in nature and detrimental to the Veteran s interest in a timely decision, the Board will proceed to a decision on the fully adequate evidence currently of record.

1. Entitlement to service connection for sleep apnea

The Veteran asserts that his sleep apnea arose during or as a result of his active service, including as secondary to his service-connected insomnia.

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. This means that the facts establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness or a medically unexplained chronic multi-symptom illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. � 1117; 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. � 1117(d) warrants a presumption of service-connection. There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 U.S.C. � 1117(a)(2)(C).

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. � 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. � 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has observed and is within the realm of his or her personal knowledge).

In this case, the Board notes that the Veteran has a current diagnosis of obstructive sleep apnea. Following a March 2012 sleep study, the Veteran was diagnosed with moderate sleep apnea. See April 2012 VA treatment records.

The Veteran s service treatment records (STRs) are negative for complaints, treatment, or diagnosis for sleep apnea. The Veteran denied problems sleeping or still feeling tired after sleeping in October 2005 and March 2006 Post-Deployment Health Reassessments.

The Veteran has stated that he has sleep apnea attributable to service. See December 2009 statement in support of claim. The Board finds that while he is credible to report on his symptoms and that of which he has personal knowledge, he is not competent to provide an opinion as to the etiology of sleep apnea because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007). Therefore, the Veteran s lay contentions do not constitute probative evidence in this regard.

During the Veteran s June 2017 VA examination for PTSD, the VA examiner opined that the Veteran s sleep apnea was not caused by his insomnia. The examiner reasoned that the Veteran s VA treatment records document that he was diagnosed with moderate sleep apnea in April 2012 following a March 2012 sleep study. The examiner stated that sleep apnea is a medical diagnosis and is a separate diagnosis and etiology from his insomnia. The examiner further reasoned that sleep apnea was more related to the Veteran s anatomy, such as his age and weight, as indicated in his treatment records.

During the Veteran s January 2018 VA examination for sleep apnea, the examiner noted that the Veteran reported sleep troubles since approximately 2008 and opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no injury sustained that would be clinically correlating to sleep apnea. The examiner further opined that the condition claimed was less likely than not proximately due to or the result of the Veteran s service-connected insomnia. The examiner reasoned that moderate sleep apnea was diagnosed in March 2012 from a sleep study that revealed an AHI of 17.9, and the Veteran sought treatment from asleep hygienist for insomnia diagnosed in 2008; insomnia does not clinically correlate to sleep apnea.

In September 2018 the Board remanded the Veteran s claim to obtain an additional VA opinion, including an aggravation opinion. Subsequently, a May 2019 VA medical opinion and Disability Benefits Questionnaire (DBQ) was associated with the claims file. In the opinion, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed condition was less likely than not proximately due to or the result of the Veteran s service-connected condition. The examiner reasoned that the Veteran s medical records indicate that he was obese and had a crowded airway with large tonsils, all of which are risk factors for sleep apnea. Additional risk factors also include male gender, smoking, and alcohol. These risk factors more likely than not are the cause of the Veteran s sleep apnea. The examiner further opined that the claimed condition was less likely than not aggravated beyond its natural progression by service-connected insomnia. The examiner reasoned that insomnia caused the Veteran to have difficulty staying asleep or falling asleep. If the claimant was not asleep, he could not have periods of apnea from sleep apnea. Therefore, it did not make logical sense that the Veteran s insomnia aggravated his sleep apnea beyond its natural progress.

The Board finds the June 2017, January 2018, and May 2019 VA examiner opinions to be highly probative. The opinions were based on a review of the claims file and relevant facts, and the examiners provided detailed rationales. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no other competent medical opinion of record to the contrary.

The Board also considered whether 38 C.F.R. � 3.317 is applicable because the Veteran served in the Southwest Asia theater of operation during the Persian Gulf War; however, sleep apnea is not an undiagnosed illness or a medically unexplained chronic multi-symptom illness. The Board notes that the June 2017 VA examiner specifically stated that sleep apnea was a medical diagnosis. The Board further notes that all the examiners stated that the Veteran s sleep apnea was related to his risk factors, including obesity, and not his active service. Thus, service connection cannot be granted under 38 C.F.R. � 3.317.

Based on these facts, the Board finds that the preponderance of the evidence indicates that the Veteran's sleep apnea did not have clinical onset during service, is not an undiagnosed illness or medically unexplained chronic multi-symptom illness, and is not otherwise related to service, to include as secondary to his service-connected insomnia. Accordingly, service connection for sleep apnea is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran s claim, that doctrine is not applicable in this appeal. 38 U.S.C. � 5107(b).

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	E. Hicks, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: ROYA BAHRAMI

judge_role: Acting Veterans Law Judge

condition: ptsd

disposition: granted

benefit: tdiu

benefit: smc

text: Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) from July 28, 2014 is granted.

text:
��Citation Nr: 21019000

Decision Date: 03/31/21	Archive Date: 03/31/21

DOCKET NO. 15-26 211A

DATE: March 31, 2021

ORDER

Entitlement to an increased rating in excess of 50 percent disabling for service-connected post-traumatic stress disorder (PTSD) prior to July 28, 2014 is denied.

Entitlement to an increased rating of 100 percent for PTSD from July 28, 2014 is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) from November 5, 2013 to July 27, 2014 is granted.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. � 1114 (s) from July 28, 2014 is granted.

FINDINGS OF FACT

1. Prior to July 28, 2014, the Veteran s PTSD is not shown to cause occupational and social impairment with deficiencies in most areas.

2. Since July 28, 2014, the Veteran s PTSD has resulted in persistent delusions or hallucinations and intermittent inability to perform activities of daily living.

3. From November 5, 2013 to July 27, 2014, it at least as likely as not that the Veteran s service-connected disabilities were of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment.

4. From July 28, 2014, the Veteran has been in receipt of a 100 percent disability rating for his PTSD, and his remaining service-connected disabilities are together ratable at 60 percent or more.

CONCLUSIONS OF LAW

1. Prior to July 28, 2014, the criteria for a rating in excess of 50 percent for PTSD have not been met.  38 U.S.C. � 1155; 38 C.F.R. � 4.130, Diagnostic Code 9411.

2. Since July 28, 2014, the criteria for an increased rating of 100 percent for PTSD have been met. 38 U.S.C. � 1155; 38 C.F.R. � 4.130, Diagnostic Code 9411.

3. From November 5, 2013 to July 27, 2014, the criteria for a TDIU have been met. 38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16, 4.19, 4.25.

4. From July 28, 2014, the criteria for entitlement to SMC at the (s) rate have been satisfied. 38 U.S.C. � 1114(s); 38 C.F.R. � 3.350(i)(1).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from February 1989 to October 1991.

These matters come before the Board of Veterans  Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2018 and September 2020, the Board remanded the issues of an increased rating for PTSD and entitlement to a TDIU for further development.

1. Entitlement to an increased rating for PTSD is granted from July 28, 2014.

The April 2014 rating decision on appeal granted service connection for PTSD and assigned a 50 percent rating effective November 5, 2013, the date the Veteran s claim was received by VA. In a December 2020 rating decision, the RO assigned a 100 percent rating effective November 19, 2020. Thus, the period on appeal is from November 5, 2013 to November 18, 2020.

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

Under the General Rating Formula for Mental Disorders, a 50 percent evaluation is assigned when a veteran s mental disability causes occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.

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

A 100 percent rating is assigned when a veteran s mental disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name.

When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran s psychiatric symptoms, the length of remissions, and the Veteran s capacity for adjustment during periods of remission.  The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner s assessment of the level of disability at the moment of the examination.  When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment but cannot assign a rating solely on the basis of social impairment.  38 C.F.R. � 4.126.

Furthermore, the specified factors for each incremental rating are examples, rather than requirements, for a particular rating.  The Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating criteria.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Indeed, the symptoms listed under � 4.130 are not intended to serve as an exhaustive list of the symptoms that VA may consider but as examples of the type of degree of symptoms, or the effects, that would warrant a particular rating.  Mauerhan, 16 Vet. App. at 442 (2002).  The Veteran s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration.  Vazquez Claudio v. Shinseki, 713 F.3d 112, 116 17 (Fed. Cir. 2013).

The Veteran submitted a private PTSD examination in March 2014. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had been married twice and that his current relationship is fair. He had five children but had poor relationships with them. The examiner noted that the Veteran had been unemployed for 12 years and that his last position held was as a driller. He reported problems holding jobs and that his source of income was Social Security disability benefits. The examiner noted that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur less than weekly, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting.

VA treatment records starting from July 2014 report that the Veteran was very depressed, that his paranoia returned, that he heard voices, and that his imaginary friends were back. In October 2014, the Veteran reported that he still heard voices, but was able to recognize that they were not real. He denied suicidal or homicidal thoughts. In December 2014, the Veteran reported that he panicked whenever he left his house and that he had a history of paranoid ideation. He reported hearing voices, but denied any visual hallucinations in the last few years. He also reported that he was depressed due to the holidays, but denied suicidal or homicidal thoughts, intent or plan and denied any delusions or hallucinations. In July 2015, the Veteran reported that he was still hearing voices, but did not have any delusions. He denied suicidal or homicidal thoughts, intent, or plan. An April 2016 treatment record reported that the Veteran had no new problems, denied current suicidal or homicidal thoughts, but reported problems with his mood and anger. He reported no delusions, but still heard voices of his imaginary friends.

The Veteran submitted a private disability benefits questionnaire in May 2016. The examiner opined that if the Veteran was subjected to the normal pressures and constructive criticisms of a job, he would react in a violent manner about once per month. The examiner also opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported that he was currently separated from his second wife, had five children, but was not in a significant relationship and lived alone. He reported that he kept his struggles to himself, not wanting to burden others. The examiner noted that the Veteran was socially isolated and withdrawn. The examiner reported that the Veteran s last job was a driller on a rig until 2001 and began receiving Social Security Disability benefits for his mental difficulties.

The examiner reported that the Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near continuous panic or depression affecting his ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; flattened affect; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner reported that the Veteran struggles performing some of his daily living tasks and that he tries to maintain his household chores, but has to be reminded to shave, shower, and get his haircut. The Veteran reported suicidal ideation claiming that he would be better off dead, but denied a plan or intent. He also reported auditory and visual hallucinations of imaginary friends. The examiner further noted that the Veteran exhibited exaggerated startle response, hypervigilance, and impaired impulse control.

Based on the foregoing, the Board finds that a 100 percent rating is warranted from July 28, 2014. In the July 28, 2014 VA treatment record, the Veteran reported that voices in his head started up again and that his imaginary friends are back. He repeatedly reported some sort of hallucination since then. Moreover, the September 2016 examination verified that the Veteran had been experiencing hallucinations and had trouble in taking care of himself and had to be reminded to shower and cut his hair.

While the examiners did not indicate that the Veteran s PTSD resulted in total occupational and social impairment, when weighing the frequency and type of symptoms the Veteran had been experiencing since July 28, 2014, the Board finds that the Veteran s PTSD symptoms are consistent with a total disability rating that resulted in total occupational and social impairment.

However, prior to July 28, 2014, the competent evidence of record, to include the Veteran s treatment records, does not establish findings consistent with a rating in excess of 50 percent. During this period, the Veteran s treatment records are consistent with occupational and social impairment with reduced reliability and productivity. His treatment records show that he was well-groomed, denied having any suicidal ideation and homicidal ideation, had normal speech, and was not experiencing any hallucinations or delusions. His treatment records do not show any evidence of panic attacks or complaints of near-continuous depression, obsessional rituals, or impaired impulse control. Further, the March 2014 private examiner explicitly found that the Veteran s PTSD symptoms resulted in occupational and social impairment with reduced reliability and productivity.

In sum, the medical evidence prior to July 28, 2014 does not show that the Veteran s PTSD resulted in occupational and social impairment with deficiencies in most areas. Rather, the medical evidence shows that his PTSD more nearly approximated the symptoms considered by the currently assigned 50 percent rating. Since July 28, 2014, the Veteran s symptoms have more nearly approximated total occupational and social impairment.

Accordingly, prior to July 28, 2014, a rating in excess of 50 percent is denied. From July 28, 2014, a 100 percent rating is granted.

2. Entitlement to a TDIU prior to July 28, 2014 is granted.

TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more 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 disability or more.  38 C.F.R. � 4.16(a).

At the outset, the Board notes that a December 2020 rating decision granted TDIU effective November 20, 2019. As such, the Board will focus on the period on appeal prior to that date.

By this decision, the Veteran has been in receipt of a 100 percent rating for PTSD since July 28, 2014. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled.  Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990).  Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Consequently, the Board finds that a TDIU is not warranted from July 28, 2014.

Prior to July 28, 2014, the Veteran was in receipt of a 50 percent rating for PTSD, a 50 percent rating for migraine headaches, and a 10 percent rating for irritable bowel syndrome. His combined disability rating was 80 percent from November 5, 2013. Consequently, he met the criteria for TDIU between November 5, 2013 and July 28, 2014.

The evidence of record indicates that the Veteran last worked in 2004 as a driller and has been in receipt of SSA benefits due to his PTSD since then. During the pertinent period on appeal, VA examiners have opined that the Veteran s ability to work was impaired by his service-connected PTSD and migraine headaches. See, e.g., March 2014 VA PTSD examination; see also May 2014 VA headaches examination.

Based on the foregoing, the Board finds that a TDIU is warranted prior to July 28, 2014. To that extent, the claim is granted.

3. Entitlement to SMC from July 28, 2014 is granted.

VA s duty to maximize a claimant s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. � 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).

Under 38 U.S.C. � 1114 (s), SMC is payable if the Veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.

By this decision, the Veteran has been assigned a 100 percent rating for his PTSD, since July 28, 2014, and the combined rating of his other service-connected disorders is 60 percent. Those disabilities migraine headaches and irritable bowel syndrome are separate and distinct from the PTSD. Consequently, the Board finds that entitlement to SMC is warranted effective July 28, 2014.

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	S. Imam, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: MICHAEL J SKALTSOUNIS

condition: back

text:
��Citation Nr: 21020000

Decision Date: 04/06/21	Archive Date: 04/06/21

DOCKET NO. 15-22 816

DATE: April 6, 2021

ORDER

Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine, from August 18, 2014, to March 2, 2020, is denied.

Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine, as of March 3, 2020, is denied.

FINDINGS OF FACT

1. From August 18, 2014, to March 2, 2020, the Veterans lumbar spine disability is manifested by, at worst, flexion to 55 degrees.

2. As of March 3, 2020, the Veterans lumbar spine disability is manifested by, at worst, flexion to 10 degrees.

CONCLUSIONS OF LAW

1. From August 18, 2014, to March 2, 2020, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met.  38 U.S.C. �� 1155, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242.

2. As of March 3, 2020, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met.  38 U.S.C. �� 1155, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1983to July 1986.

These matters come before the Board of Veterans  Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veteran s Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

In February 2019 and April 2020, this claim was remanded for additional development.

The Board notes that during the period on appeal, the Veteran s lumbar spine disability rating was increased to 40 percent as of March 3, 2020.

Increased Rating

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

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

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.  When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.  VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. � 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. �� 4.40 and 4.45, pertaining to functional impairment.  The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves.  These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. � 4.59.

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

In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Entitlement to a rating in excess of 20 percent, prior to March 3, 2020, for degenerative joint disease of the lumbar spine and in excess of 40 percent thereafter

The Veteran and his representative claim that he is entitled to a higher rating for his service-connected degenerative disc disease of the lumbar spine.  From August 18, 2014, to March 2, 2020, the disability was rated at 20 percent disabling and, as of March 3, 2020, the disability is rated at 40 percent under the General Rating Formula for Diseases and Injuries of the Spine.

The General Rating Formula for Diseases and Injuries of the Spine holds that for Diagnostic Codes 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.

The criteria also include the following provisions:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the veteran's mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. � 4.25 (combined ratings table).

The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. � 4.25, whichever method resulted in the higher evaluation.

During the course of the appeal, the Veteran has been afforded four VA examinations in November 2014, October 2015, August 2017, and September 2020.

The November 2014 VA examiner diagnosed the Veteran with a lumbosacral strain.  No flare-ups were reported during the VA examination. And range of motion (ROM) is tested actively and against resistance.  The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 65 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 20 degrees (normal is 30), and left rotation is limited to 20 degrees (normal is 30).  Repetitive testing does not show additional loss to the Veteran's ROM.  The examination of the thoracolumbar spine revealed diffuse tenderness of bilateral paravertebrals starting in mid-thoracic and into the lumbar region.  There was no guarding or muscle spasms noted on examination.  There was normal muscle strength in testing. The examination did not reveal ankylosis or IVDS. The Veteran did not report using assistive devices.  The examiner opined that the Veteran s lumbar disability does not result in functional impact.

The October 2015 VA examiner diagnosed the Veteran with degenerative arthritis of the spine.  No flare-ups were reported during the VA examination.  The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 55 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 25 degrees (normal is 30), and left rotation is limited to 25 degrees (normal is 30).  The Veteran has some tenderness to palpation of the mid to lower thoracic region and also at times experienced some pain in this area while lying supine.  Repetitive testing does not show additional loss to the Veteran's ROM.  There was no guarding or muscle spasms noted on examination.  The Veteran was noted as having normal muscle strength in testing.  The examination did not reveal ankylosis or IVDS.  The Veteran did not report using assistive devices.  The examiner opined that the Veteran s lumbar disability does not result in functional impact.

The August 2017 VA examiner diagnosed the Veteran with degenerative arthritis of the spine.  No flare-ups or functional loss were reported during the VA examination.  The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 70 degrees (normal is 90), the extension is limited to 20 degrees (normal is 30), the right lateral flexion is limited to 20 degrees (normal is 30), the left lateral flexion is limited to 20 degrees (normal is 30), right rotation is limited to 20 degrees (normal is 30), and left rotation is limited to 20 degrees (normal is 30).  Repetitive testing does not show additional loss to the Veteran's ROM.  There was no guarding or muscle spasms noted on examination.  The Veteran was noted as having normal muscle strength in testing.  The examination did not reveal ankylosis or IVDS.  The Veteran did not report using assistive devices.  The examiner opined that the Veteran s lumbar disability does not result in functional impact.

VA outpatient records from April 2019 indicate that the Veteran reported the onset of pain in the center of his back while cycling and was seeking a renewal of pain medication.  Records from July 2019 reflect that the Veteran reported the onset of lower back pain when  picking up his granddaughter  a week earlier.  He further reported that since then, he had been to the chiropractor on four different occasions.  The plan was for him to undergo physical therapy.

VA outpatient treatment records from November 2019 reflect that the Veteran reported increased lower back pain into the buttocks.  Examination of range of motion at this time revealed that flexion was mildly decreased with pain and that extension was moderately decreased with pain.  The assessment was lumbalgia with segmental dysfunction and associated myalgia.  The prognosis was fair.  In February 2020, it was noted that the Veteran s problems included a history of chronic low back pain.

Private chiropractic records from April 2020 note that the Veteran was undergoing treatment for the exacerbation of his low back condition that was currently non-radiating.  Range of motion testing of the thoracic and entire lumbar spine was recorded as moderately reduced with pain noted.  These records date back to June 2016, but prior to April 2019, the limited movement with respect to the lumbar spine was described more as mild in nature.

The September 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the spine.  The Veteran reported experiencing current symptoms of constant aching pain in low back with intermittent shooting pain down the bilateral legs.  No flare-ups were reported during the VA examination.  The examiner reported that the Veteran has impairment of prolonged standing and walking and bending, which results in functional loss.  The Veteran's ROM is limited, and he experiences pain on motion--specifically the Veteran's flexion is limited to 10 degrees (normal is 90), the extension is limited to 0 degrees (normal is 30), the right lateral flexion is limited to 10 degrees (normal is 30), the left lateral flexion is limited to 10 degrees (normal is 30), right rotation is limited to 10 degrees (normal is 30), and left rotation is limited to 10 degrees (normal is 30).  The Veteran reported difficulty with bending and putting on shoes and socks.  The Veteran is unable to do repetitive use testing because of extreme pain.  No additional limitation to ROM during repeated use over time.  Muscle spasm result from degenerative arthritis, causing irritability and reversing the normal lumbar lordosis.  The Veteran was noted as having normal muscle strength in testing.  The examination did not reveal ankylosis or IVDS.  The Veteran regularly uses assistive devices, such as a back brace to decrease pain from degenerative arthritis.  The VA examiner opined that the Veteran s lumbar spine disability causes a functional impact causing an impairment of sitting, standing, walking, bending because of degenerative arthritis.

A. From August 18, 2014, to March 2, 2020

The Board finds that the medical evidence of record from August 18, 2014, to March 2, 2020, reflects findings that are actually consistent with a 10 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine.  His most significant loss of motion for this period was his flexion, which was, at worst, 55 degrees with pain on motion.  However, that measurement squarely places the Veteran's limited movement within the 20 percent criteria for rating the back, when including consideration of the Veteran's pain on functional use.  The Veteran also denied any incapacitating episodes within the previous 12 months.

Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating from August 18, 2014, to March 2, 2020.

B. As of March 3, 2020

The Board finds that the medical evidence of record as of March 3, 2020, reflects findings that are consistent with a 40 percent rating based on the General Rating Formula for Diseases and Injuries of the Spine.  His most significant loss of motion for this period was his flexion, which was, at worst, 10 degrees with pain.  However, that measurement squarely places the Veteran's limited movement within the 40 percent criteria for rating the back, including consideration of the Veteran's pain on functional use.  The Veteran also denied any incapacitating episodes within the previous 12 months.  The board also noted that the Veteran s current 40 percent rating is the maximum schedular disability rating based on limitation of motion, and thus an even higher rating for limited motion based on functional use is not warranted.  Johnston v. Brown, 10 Vet. App. 80 (1997) and Spencer v. West, 13 Vet. App. 376 (2000).  Ankylosis is also not present.

Accordingly, as the Veteran does not have ankylosis of the thoracolumbar spine and additional lost motion based on functional use is not for consideration, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating as of March 3, 2020.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	A. R. Montalvo, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: H M WALKER

text:
��Citation Nr: 21021000

Decision Date: 04/09/21	Archive Date: 04/09/21

DOCKET NO. 15-31 266

DATE: April 9, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

FINDING OF FACT

Resolving reasonable doubt in the Veteran s favor, his bilateral hearing loss is at least as likely as not related to his military service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. �� 1110, 5107(b); 38 C.F.R. �� 3.102, 3.303(a), 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the U.S. Army from May 1977 to May 1980.

Entitlement to service connection for bilateral hearing loss.

The Veteran seeks service connection for bilateral hearing loss that incurred, he asserts, because of his exposure to noise from artillery fire during his time in service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. � 1110.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an 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).

Both the November 2013 and January 2020 examinations confirm current hearing gloss, which is disabling for VA purposes, indicating that the Veteran has bilateral sensorineural hearing loss.  Thus, the current disability requirement is satisfied.

Regarding the in-service requirement, service records show the Veteran served with a field artillery unit and his MOS was tactical wire operator.  The Department of Defense s Duty MOS Noise Exposure Listing does not have a listing for this particular MOS; however, similar positions have either a moderate or high probability of hazardous noise exposure.  In addition to his MOS, the Board notes that the Veteran s DD-214 report he received an expert badge for hand grenades and the M-16 rifle.  His assertions that he was exposed excessive levels of noise are consistent with the circumstances of his service.  The Board finds that the Veteran was exposed to the levels of noise in service he described.  Thus, the in-service occurrence or injury requirement is likewise satisfied.

Turning to the final question of whether a causal relationship exists between the present disability and service, the opinions provided in both the November 2013 and January 2020 VA examinations appear to rest on the fact that the Veteran had normal hearing during his military service and was not diagnosed until 2013.  The fact that hearing loss was not identified during service is not fatal to a claim for service connection.  A veteran may establish direct service connection for a hearing loss disability, which initially manifested several years after separation from service, by showing evidence of a current hearing loss disability and a causal relationship to active duty service.  See Hensley v. Brown, 5 Vet. App. 155 (1993); see also 38 C.F.R. � 3.303(d).  Therefore, a lack of threshold shift during service or  normal  hearing at separation is not sufficient to provide the sole basis for a denial of a claim for service connection for bilateral hearing loss absent any other rationale.

The Veteran has reported that his hearing loss was due to excessive amounts of noise from artillery fire during service.  The Board finds that the evidence is in equipoise.

As such, all reasonable doubt is resolved in the Veteran s favor, and service connection for bilateral ear hearing loss is granted.

H.M. WALKER

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	A. Price, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: PAUL SORISIO

text:
��Citation Nr: 21022000

Decision Date: 04/14/21	Archive Date: 04/14/21

DOCKET NO. 11-13 969

DATE: April 14, 2021

ORDER

For the period prior to September 25, 2009, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted.

FINDING OF FACT

For the period prior to September 25, 2009, the Veteran s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment.

CONCLUSION OF LAW

For the period prior to September 25, 2009, the criteria for an award of TDIU on an extraschedular basis are met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1964 to August.  This matter comes before the Board of Veterans  Appeals (Board) from a May 2009 rating decision.  In August 2020, the Board granted a TDIU from the period since September 25, 2009 and remanded the issue of entitlement to a TDIU prior to that date.

***

A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. �� 3.340, 4.16(a).  This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).

Prior to September 25, 2009, service connection is in effect for laryngeal trauma with upper airway obstruction (30 percent), residuals of fracture of the thyroid cartilage with hoarseness and partial left vocal cord paralysis (30 percent), and residuals scars of left temporal and mandible regions (10 percent), for a combined rating of 60 percent.  As such, during this period, the Veteran did not meet the criteria for consideration of a TDIU on a schedular basis.  38 C.F.R. � 4.16(a).

Nevertheless, it is VA s established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU.  38 C.F.R. � 4.16(b).  Neither the RO nor the Board may assign an extraschedular TDIU in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).

In August 2020, the Board remanded the issue of entitlement to a TDIU prior to September 25, 2009, for extraschedular consideration.  In August 2020, the AOJ recommended that entitlement to an extraschedular TDIU be denied. 08/14/2020, VA Memo.  In January 2021, the Director, Compensation Service, concurred with the AOJ s recommendation to deny TDIU benefits. 01/14/2021, VA Memo.

This case has now been returned to the Board for further review.  In this regard, although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director s decision is in essence a decision by the AOJ and is no different than a RO s decision in terms of its effect on the Board's jurisdiction and standard of review.  See Wages v. McDonald, 27 Vet. App. 233 (2015).  Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. � 4.16(b).

Consequently, the Board must determine whether the Veteran s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a  living wage ).  Moore v. Derwinski, 1 Vet. App. 356 (1991).  The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative.

The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  An inability to work due to advancing age may not be considered.  38 C.F.R. �� 3.341(a), 4.19.  In making its determination,

VA considers such factors as the extent of the service-connected disability, and employment and educational background.   See 38 C.F.R. �� 3.340, 3.341, 4.16(b), 4.19.

***

The Veteran has stated that his last full-time employment was as a fireman in 1994.  There is no indication that the Veteran has worked since then.  In fact,

VA examinations suggest that he retired in 1994 due to medical reasons.

In his 2008 TDIU claim form, the Veteran reported two years of college, with additional training as a mechanic.  Regarding his ability to work, he asserted that he is unable to pursue a job due to his voice disability.

The Veteran is service-connected for residuals of thyroid cartilage fracture with hoarseness and partial left vocal cord paralysis.  This disability, which manifests as hoarseness, has been rated as 30 percent disabling since October 2003.

Additionally, his service-connected larynx (respiratory) disability (rated as

30 percent disabling since February 2008) has been found to limit his ability to do physical work.

After having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the service-connected disabilities at issue precluded him from obtaining and retaining substantially gainful employment during the period prior to September 25, 2009.  As mentioned, the Veteran s respiratory disability limits his ability to do physical work.  Additionally, he has a vocal cord disability that limits his ability to use his voice.  The Board finds that these disabilities combine to render the Veteran unemployable.  Insofar as the evidence suggests that the Veteran could do some types of non-physical work, the Board finds that this option is unrealistic when looking at the overall disability picture, as there is no indication that the Veteran has the experience, education or training to secure substantially gainful employment.  As mentioned, he last worked as a fireman in 1994 and has been out of the workforce ever since.  His education consists of two years of college and training as a mechanic.  Furthermore, his service-connected voice disability limits his ability to communicate verbally.  This impairment significantly limits the Veteran s ability to secure and maintain substantial employment.

Resolving doubt in favor of the Veteran, the Board finds that the Veteran s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment.  See 38 U.S.C. � 5107(b); 38 C.F.R. �� 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49,

53-56 (1990).  A TDIU is granted for the period prior to September 25, 2009.

Paul Sorisio

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	P. L�pez, Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: YVETTE R WHITE

text:
��Citation Nr: 21023000

Decision Date: 04/19/21	Archive Date: 04/19/21

DOCKET NO. 10-45 328

DATE: April 19, 2021

ORDER

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

FINDING OF FACT

The Veteran s hearing loss was manifested by no worse than/ level/ I/ hearing in the right ear and level V hearing in/ the left ear.

CONCLUSION OF LAW

The criteria for a compensable rating for left ear hearing loss have not been met./  38/ U.S.C. ��/ 1155, 5103, 5103A, 5107;/ 38/ C.F.R. ��/ 4.85, 4.86, Diagnostic Code/ (DC)/ 6100./

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1975 to September 1978 and from November 1980 to November 1997.

The appeal originated from the January 2010 rating decision which denied a compensable rating for the Veteran s service-connected left ear hearing loss with history of otitis media and otitis externa and a compensable rating for right ear otitis media and otitis externa.  The Veteran appealed the claims to the Board of Veterans  Appeals (Board).  In a February 2017 decision, the Board denied compensable ratings for his service-connected left ear hearing loss and right ear otitis media and otitis externa.  The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).

Pursuant to a January 2018 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board s decision regarding his service-connected left ear hearing loss and service-connected right ear otitis media and otitis externa and remanded the claims to the Board for action consistent with the terms of the JMPR.  See January 2018 JMPR.  In the JMPR, the parties agreed that the Board erred in relying on the October 2009 VA medical opinion in addressing whether the Veteran s balance disturbance and dizziness were related to his service-connected left ear hearing loss.

The Board remanded the claims in May 2019 for additional development in order to comply with the January 2018 JMR.  See May 2019 Board Decision.  The Board also remanded the Veteran s claim for a compensable rating for his service-connected left ear hearing loss in September 2019.  See September 2019 Board Decision.

In the July 2019 Rating Decision, the Regional Office granted a 10 percent rating for right ear otitis media and otitis externa and granted service connection for peripheral vestibular disorder with Eustachian dysfunction.  See July 2019 Rating Decision.

In its September 2019 decision, the Board acknowledged that the Veteran s appeal for right ear otitis media and otitis externa was no longer before the Board because the Veteran s claim had been granted in full in the July 2019 Rating Decision.  See September 2019 Board Decision.  As such, the claim for a compensable rating for left ear hearing loss is the only remaining issue on appeal.

The claim was most recently remanded for additional development in September 2020. See September 2020 Board Decision.

The Board notes that the issue of entitlement to service connection for right ear hearing loss was raised by the evidence of record.  Specifically, in a July 2020 letter, the Veteran indicated he had hearing loss in both ears and stated,  I also find it interesting that the V.A. has found no hearing loss in my right ear.   See July 2020 Correspondence.  The medical evidence also reflects that the Veteran has bilateral hearing loss.  See i.e., August 2015 Riverside Ear, Nose, and Throat Physicians Record (diagnosing sensorineural hearing loss of both ears).  However, this issue has not been developed for appellate consideration.  As such, it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.

1. Increased Rating

The Veteran seeks a compensable rating for his service-connected/ left ear hearing loss.  See January 2010 Notice of Disagreement (NOD).

Legal Criteria

Disability ratings are determined by evaluating the extent to which a Veteran s service-connected disability adversely affects/ his/ ability to function under the ordinary conditions of daily life, including employment, by comparing/ his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule)./  38/ U.S.C. �/ 1155;/ 38/ C.F.R. ��/ 4.1, 4.2, 4.10./

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned./  38/ C.F.R. �/ 4.7./  The Veteran s entire history is to be considered when making disability evaluations./  See/ generally/ 38/ C.F.R. �/ 4.1;/ Schafrath/ v./ Derwinski,/ 1/ Vet. App./ 589 (1995)./

 Staged  ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings./  See/ Hart v. Mansfield, 21/ Vet. App./ 505 (2007)./

Evaluations of bilateral defective hearing range from/ noncompensable/ to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by/ puretone/ audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz)./  To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness)./  38/ C.F.R. �/ 4.85, Tables VI and VII, DC 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. / See/ Lendenmann/ v./ Principi,/ 3/ Vet. App./ 345 (1992). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. / 38/ C.F.R. �/ 4.85, DC 6100./

Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of/ 38/ C.F.R. �/ 4.86./  That regulation states:/ (a) When the/ puretone/ threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table/ VIa, whichever results in the higher numeral.  / Each ear will be evaluated separately./  (b) When the/ puretone/ threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table/ VIa, whichever results in the higher numeral./   That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately./  An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a/ puretone/ audiometry test./  38/ C.F.R. �/ 4.85(a).

In this case, the Board notes that the Veteran is service connected only for left ear hearing loss.  If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman numeral designation of I for hearing impairment. 38 C.F.R. � 4.85(f).

However, under the VA provisions governing paired organs, where there is service-connected hearing impairment in one ear compensable to a degree of 10 percent or more and hearing impairment in the other ear as the result of a nonservice-connected disability, which is not the result of the Veteran s own willful misconduct and which meets the criteria for a disability under 38 C.F.R. � 3.385, the rate of compensation shall be paid as if the bilateral hearing loss were the result of the service-connected disability. 38 U.S.C. � 1160 (a)(3); 38 C.F.R. � 3.383 (a)(3); VAOPGCPREC 32-97, 62 Fed. Reg. 63605 (1997).

For the purpose of applying the laws administered by VA, impaired hearing will be considered to be 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. Accordingly, if VA determines that a compensable rating is warranted for the Veteran s left ear hearing loss and he has hearing loss in the right ear per 38 C.F.R. � 3.385, he may be compensated as if his hearing loss in both ears were service connected.

Relevant/ Facts and/ Analysis

The Veteran filed an increased rating claim for his service-connected left ear hearing loss in August 2009. See August 2009 VA Form 21-4138, Statement in Support of Claim.  As such, the relevant period on appeal is from August 24, 2009.

The Veteran was afforded three VA audiological examinations in/ October 2009, May 2019,/ and January 2021./

During the/ October 2009 VA audiological evaluation, indicated pure tone air conduction thresholds, in decibels, were as follows:

  	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	25 	20	15	25	35

LEFT	30 	25	20	20	50

See October 2009 VA Examination Report.  Although air and bone conduction results were reported, the examiner indicated that the  air conduction study is better than a bone conduction study to reflect the claimant s hearing loss.   Id.  The/ puretone/ threshold average was/ 23.75/ decibels in the right ear and/ 28.75/ decibels in the left ear./   Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 64 in the left ear.

Applying Table VI of the rating schedule, the results of October 2009 audiogram revealed that the Veteran had Level/ I/ hearing in the right ear and Level V hearing in the left ear./  Based on Table VII, these results correspond to a/ noncompensable/ rating./  See/ 38/ C.F.R. �/ 4.85./

The Veteran s private treatment records from August 2015 reflect he was treated for complaint of an earache in August 2015.  See August 2015 Riverside Ear, Nose & Throat Physicians Treatment Record.  He reported his hearing was stable and no audiogram testing was conducted.

The Veteran was provided a second VA audiological examination in/ May 2019. The/ air conduction testing revealed/ pure tone thresholds, in decibels, as follows:/

  	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	 15	 15	10 	 30	 30

LEFT	 10	10	20	15	80

See May 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ).  The/ puretone/ threshold average was/ 21.25/ decibels in the right ear and/ 31.25/ decibels in the left ear./  Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear.

Applying Table VI of the rating schedule, the results of May 2019 audiogram revealed that the Veteran had Level/ I/ hearing in the right ear and Level I hearing in the left ear./

Based on Table VII, these results correspond to a/ noncompensable/ rating.  See/ 38/ C.F.R. �/ 4.85.

The Veteran underwent a third VA examination in January 2021 pursuant to the September 2020 Board remand.  The Air conduction audiogram revealed, pure tone thresholds, in decibels, as follows:

  	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	 20	20	10	25	25

LEFT	 20	20	15	20	70

See January 2021 VA Hearing Loss and Tinnitus DBQ.  The/ puretone/ threshold average was/ 20 decibels in the right ear and 31.25 decibels in the left ear./  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear.

Applying Table VI of the rating schedule, the results of January 2021 audiogram revealed that the Veteran had Level/ I/ hearing in the right ear and Level I hearing in the left ear./   Based on Table VII, these results correspond to a/ noncompensable/ rating./  See/ 38/ C.F.R. �/ 4.85.

The Veteran has undergone multiple audiological evaluations for his service-connected left ear hearing loss.  The record contains hearing conservation audiograms dated July 2010 and August 2011.  See July 2010 and August 2011 McDonald Army Health Center Hearing Conservation Data.  The Veteran s private treatment records also reflect two audiological evaluations from August 2015 and May 2018.  See August 2015 Riverside Ear, Nose, and Throat Physicians Audiogram; May 2018 Riverside Ear, Nose, and Throat Physicians Audiogram.  However, because these examinations did not confirm that Maryland CNC word list was used to obtain speech discrimination scores as required under 38 C.F.R. � 4.85(a), the aforementioned audiological examination results are not valid for rating purposes.

Upon review, the audiological examinations of record indicate findings corresponding to no higher than a/ noncompensable/ rating./   There is no additional competent evidence in the record that would suggest that the Veteran s hearing loss is severe enough to warrant a higher rating. /  The Board has no reason to doubt the validity of the VA audiometric testing in this case./

In consideration of the above, the Board finds that a compensable rating is not warranted for the Veteran s service-connected left ear hearing loss disability.  As such, VA regulations regarding paired organs do not apply.  38 C.F.R. � 3.383(a)(3).

Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. / 38/ C.F.R. �/ 4.86(a), (b)./   Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc./   As such, there is no basis to alternatively rate this claim under Table VIA./   See/ 38/ C.F.R. �/ 4.85(c)./

The Veteran s subjective reports of hearing impairment have been considered./   See/ Layno/ v. Brown,/ 6/ Vet. App./ 465, 469-70 (1994)./  However, a review of his/ lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating./

Notably, the Veteran s symptoms of dizziness and disturbance of balance have been compensated by his now service-connected peripheral vestibular disorder with Eustachian dysfunction.  Moreover, the Board is bound to apply the VA rating schedule, where the assignment of disability ratings for hearing impairment is derived from a mechanical formula./

Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiological examinations from/ October 2009, May 2019, and January 2021/ are/ more probative of the severity of the Veteran s hearing loss disability for VA purposes, where it relies upon specific medical testing. /  See/ Jandreau/ v. Nicholson, 492 F.3d 1372, 1376-77 (2007)./

In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the Veteran s left hearing loss disability is/ noncompensable, throughout the appeal period./

The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter.

The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal./   Therefore,/ as/ the preponderance of the evidence is against the claim,/ the benefit-of-the-doubt rule does not apply/ and the claim for a compensable rating must be denied./ Gilbert v. Derwinski,/ 1/ Vet. App./ 49; 38/ U.S.C. �/ 5107(b); 38/ C.F.R. �� 4.3, 4.7.

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	G. Lilly, Associate Attorney

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: ANTHONY C SCIRÉ, JR

disposition: dismissed

text: The appeal is dismissed.

text:
��Citation Nr: 21024000

Decision Date: 04/21/21	Archive Date: 04/21/21

DOCKET NO. 21-00 094

DATE: April 21, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

On April 19, 2021, the Board was notified that the appellant died in March 2021.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. � 7104(a); 38 C.F.R. � 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from April 1976 to February 1980. This matter comes before the Board of Veterans  Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA).

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, appellants  claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  38 U.S.C. � 7104(a); 38 C.F.R. � 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. � 20.1106.

The Board s dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant s death.  38 U.S.C. � 5121A; 38 C.F.R. � 3.1010(b).  A person eligible for substitution includes  a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title & .   38 U.S.C. � 5121A; 38 C.F.R. � 3.1010(a).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated.  38 C.F.R. � 3.1010(b).

ANTHONY C. SCIR�, JR

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	D. Reed, Associate Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: TANYA SMITH

disposition: remanded

condition: gi

condition: shoulder

text:
��Citation Nr: 21025000

Decision Date: 04/27/21	Archive Date: 04/27/21

DOCKET NO. 11-16 084

DATE: April 27, 2021

REMANDED

Entitlement to service connection for a cervical spine disability is remanded.

Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), is remanded.

Entitlement to service connection for status post hemorrhoidectomy, to include as secondary to service-connected irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD), is remanded.

Entitlement to an initial rating higher than 20 percent for right shoulder strain is remanded.

Entitlement to a compensable rating for pseudofolliculitis barbae is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1985 to April 1992, and from July 2009 to September 2009. He served in Southeast Asia from January 1991 through October 1991.

This matter comes before the Board of Veterans  Appeals (BVA or Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2017, the Board requested a medical expert opinion from the VHA. A VHA medical opinion was rendered in January 2018.

In January 2019, the issues of entitlement to service connection for chronic fatigue syndrome, a cervical spine disability, a lumbar spine disability and asthma were remanded for issuance of a supplemental statement of the case.

In October 2020, the Board dismissed the issues of entitlement to service connection for asthma, narcolepsy, and entitlement to increased ratings for IBS with GERD, and a left shoulder strain. The issue of entitlement to service connection for a traumatic brain injury (TBI) was denied; the issues of entitlement to service connection for a lumbar spine disability, sleep apnea, migraines, and chronic fatigue were granted. The Board also denied entitlement to an increased rating for fibromyalgia and granted an increased rating for PTSD.

The issues of entitlement to service connection for a cervical spine disability, hypertension, status post hemorrhoidectomy, a right shoulder strain, entitlement to a compensable rating for pseudofolliculitis barbae and entitlement to a TDIU were remanded.

The Board notes that a separate Board decision was also issued in October 2020, which granted entitlement to service connection for a bilateral ankle disability and remanded the issues of entitlement to increased ratings for the bilateral knees; importantly, however, this decision was issued under the Appeals Modernization Act (AMA), and as such, is not part of the instant Board decision, which is part of the legacy system.

All issues are remanded.

Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished.  Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

As noted, these issues were remanded by the Board in October 2020 to complete additional development.

More specifically, in the October 2020 remand, the Board directed the RO to obtain addendum VA medical opinions for the Veteran s claimed cervical spine disability, hypertension, hemorrhoids, and to afford the Veteran VA examinations for his right shoulder disability and pseudofolliculitis barbae. The remand then directed the RO to readjudicate the issues on appeal, and to issue a supplemental statement of the case (SSOC) if the benefits sought remained denied.

Evidence indicates the Veteran was afforded VA examinations and medical opinions were obtained; however, the RO did not thereafter readjudicate the claims yet the appeal was sent back to the Board. As of the date of this decision, no SSOC has been associated with the Veteran s claims file addressing these issues.

In short, the RO has not yet substantially complied with the directives set forth in the October 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the RO must ensure that all development ordered on remand in October 2020 has been completed and the issues on appeal should then be readjudicated. If the claims remain denied, a SSOC must be issued.

The matters are REMANDED for the following action:

1. Ensure that all development ordered in the October 2020 Board remand has been completed.

2. Thereafter, readjudicate the claims.

If the claims remain denied, the Veteran and his representative must be issued a SSOC.

An appropriate period of time must be allowed for response.

TANYA SMITH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	L. Andersen, Counsel

The Board s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.