judge_norm: THOMAS J DANNAHER

text:
Citation Nr: 1522000
Decision Date: 05/21/15    Archive Date: 06/01/15

DOCKET NO.  12-06 421	)	DATE
	)
	)

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

THE ISSUE

Entitlement to dependency and indemnity compensation (DIC) benefits based on service connection for cause of the Veteran's death.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

C. Eckart, Counsel

INTRODUCTION

The Veteran served on active duty from November 1942 to September 1943.  He died in March 1997.  The appellant is his child.

This matter comes before the Board from an October 2010 determination that denied entitlement to DIC benefits and death pension benefits on the basis that the appellant was not found to be a child for VA purposes, as she was over the age of 23, and was determined to not have become permanently disabled prior to the age of 18 (helpless child).  She requested the RO reconsider the DIC claim in October 2010, and in a September 2011 rating, the RO issued a rating that determined that permanent incapacity for self-support was not established for the purpose of establishing entitlement to VA benefits.  Subsequently the appellant filed a notice of disagreement (NOD) in October 2011 which was within a year of the October 2010 decision, and expressed disagreements with the findings that she did not meet the criteria for being considered a helpless child.  Thereafter the RO issued a statement of the case (SOC) in February 2012 as to the issue of helpless child status for VA purposes.  The appellant filed a substantive appeal with this determination in March 2012.

Subsequently, after considering additional evidence, the RO issued a rating in June 2012 that established helpless child status for the appellant, finding that permanent incapacity for self-support was shown.  The RO then issued a rating in August 2012 that made a decision on what it considered as a NOD received in May 2012, but actually turns out to be a duplicate of the March 2012 substantive appeal.  The RO also issued a SOC in August 2012 limited to adjudicating the DIC claim by finding that the appellant met the criteria for a helpless child but denied the service connection claim on the merits.  The appellant filed a substantive appeal with the denial of service connection for cause of death in August 2012.

Next the RO issued a Supplemental Statement of the Case (SSOC) in January 2013 that addressed both the DIC and the pension claim on the merits.  The appellant filed a substantive appeal later in January 2013 expressing her intent to appeal both matters.  In this substantive appeal she requested a Board hearing be held at the Central Office.  She subsequently withdrew this request in October 2013.

The Board remanded this matter for further development in April 2014 and again in September 2014.  Such has been completed and this matter is returned to the Board for further consideration.  The September 2014 Board decision denied death pension benefits and that matter is no longer on appeal.

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

FINDINGS OF FACT

1.  According to the death certificate, the Veteran died on March [redacted], 1997; his immediate cause of death was cardiac arrest due to or as a consequence of congestive heart failure (CHF) with other significant conditions including chronic renal insufficiency and chronic obstructive pulmonary disease (COPD).  The medical records prior to death revealed long term problems with heart disease, lung disease including COPD, and emphysema.  The Veteran was not service-connected for any of the conditions associated with the immediate or underlying cause or any conditions contributing to death.

2.  At the time of his death, the Veteran was service-connected for arthritis of the dorsal vertebrae, which has been rated continuously at 10 percent disabling from November 1946 to his death.

3.  Cardiovascular-renal disease and lung disease were not present in service, nor was cardiovascular-renal disease manifested within one year after discharge, nor etiologically related to service; and the preponderance of the evidence is against a finding that service-connected disability caused or contributed substantially or materially to his death.

CONCLUSION OF LAW

A disability incurred or aggravated in service, a disability that may be presumed to have been incurred in service, or a disability that is otherwise related to service did not cause or contribute substantially or materially to the cause of the veteran's death. 38 U.S.C.A. �� 1110 , 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. �� 3.102 , 3.159, 3.303, 3.312 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

In February 2011, May 2011 and September 2014 letters, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. � 5103(a) (West 2002) and 38 C.F.R. � 3.159(b) (2014).  The AOJ notified the appellant of information and evidence necessary to substantiate her claim.  She was notified of the information and evidence that VA would seek to provide and the information and evidence that she was expected to provide.

In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the veteran's death, section 5103(a) notice must be tailored to the claim. The notice should include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected.  Hupp v. Nicholson, 21 Vet. App. 342 (2007).  Unlike a claim to reopen, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a non-detailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Id. Where a claimant submits a detailed application for benefits, VA must provide a detailed response. Id.  The Board remanded this matter in September 2014 in to ensure proper notice in accordance with Hupp was sent to the appellant.

The September 2014 letter provided notice consistent with the United States Court of Appeals for Veterans Claims (Court's) holding in Hupp.  Since the Board has concluded that the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's death, any questions as to the appropriate effective date to be assigned is rendered moot, and no further notice is needed.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The matter was readjudicated in a February 2015 supplemental statement of the case.

VA has done everything reasonably possible to assist the appellant with respect to her claim for benefits in accordance with 38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c).  The Veteran's service treatment and personnel records and VA, and private medical records and examinations have been associated with the claims file.  All reasonably identified and available medical records have been secured.

The Board finds that the July 2014 VA medical opinion is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history and offered an etiological opinion with rationale from which the Board can reach a fair determination.  The records satisfy 38 C.F.R. � 3.326 (2014).  The Board finds the duties to notify and assist have been met.

II. Factual Background and Legal Analysis

The Board has reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

The appellant seeks service connection for the cause of the Veteran's death.  Essentially she argues that the Veteran's service-connected arthritis of the spine, specifically the dorsal vertebrae, which has been rated continuously at 10 percent disabling from November 1946 to his death, caused or otherwise contributed to his death.  His death certificate shows that he died on March [redacted], 1997; his immediate cause of death was cardiac arrest due to or as a consequence of congestive heart failure (CHF) with other significant conditions including chronic renal insufficiency and chronic obstructive pulmonary disease (COPD).  The appellant alleges that the Veteran's arthritis of the spine caused him to be unable to exercise and as a result, his heart weakened culminating in his death.  Specifically she alleged that he was unable to even walk or go up and down stairs or to get in and out of bed, thus causing his heart to weaken and give out.

She additionally submitted an argument that the Veteran was an alcoholic which could have aggravated conditions leading to his death.  However the Veteran was not service-connected for alcoholism, and generally unless it is deemed associated with a psychiatric disability (the Veteran is not service-connected for psychiatric disability), disability resulting from alcohol or drug abuse, since it is willful misconduct cannot be service connected.  38 U.S.C.A. � 105(a) (West 2014); 38 C.F.R. �� 3.1(m)-(n), 3.301(d), 3.303(c)-(d) (2014).  Thus the Board will not discuss a claim of entitlement on this basis any further.

Pursuant to 38 U.S.C.A. � 1110 ; 38 C.F.R. � 3.303, a Veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. � 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. � 3.303(d).

"To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a).

Certain chronic diseases, such as diabetes, and cardio-vascular renal disease, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service.  See 38 U.S.C.A. �� 1101, 1112, 1113 (West 2002 & Supp. 2014); 38 C.F.R. �� 3.307, 3.309 (2014).  This is also a direct service connection theory of entitlement.

A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009.  A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002).

However, although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the appellant is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

In order for service connection for the cause of the Veteran's death to be granted, it must be shown that a service-connected disability caused the death, or substantially or materially contributed to cause death. A service-connected disability is one that was incurred in or aggravated by active service, one that may be presumed to have been incurred during such service, or one that was proximately due to or the result of a service-connected disability.  38 C.F.R. � 3.312.

The death of a Veteran will be considered as having been due to a service- connected disability when such disability was either the principal or contributory cause of death.  38 C.F.R. � 3.312(a).  The service-connected disability will be considered the principal (primary) cause of death when such disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. � 3.312(b).  The service-connected disability will be considered a contributory cause of death when it contributed so substantially or materially to death that it combined to cause death, or aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. � 3.312(c)(1).  The debilitating effects of a service-connected disability must have made the Veteran materially less capable of resisting the fatal disease or must have had a material influence in accelerating death.  See Lathan v. Brown, 7 Vet. App. 359 (1995).

There are primary causes of death, which, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death.  In this situation, however, it would not generally be reasonable to hold that a service- connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.  38 C.F.R. � 3.312(c)(3), (4).

Based on review of the overall evidence, the Board finds that service connection is not warranted for cause of the Veteran's death.

In regards to the claimed contributing disorders of cardiovascular disease/renal insufficiency and/or COPD, service treatment records do not reflect complaints or findings of any of these conditions, and he is also not shown to have had any cardiovascular-renal disease manifested within a year of his discharge in September 1943.  He is noted to have been hospitalized at a VA facility in December 1948 for pneumonia and chronic duodenal ulcer/hiatus hernia, with no indication of a chronic lung or cardiovascular-renal disease dating back to service.  The accompanying chest X-ray was noted to show normal shadow.

The VA examination of December 1949 and private treatment records from 1952 through 1957 are silent for any evidence of heart, lung or kidney disorder.  A November 1971 VA examination focused on spinal disability, noting X-ray findings osteoarthritic changes with lipping and spurring in the thoracic and lumbosacral spine.  Exam shows that the veteran was obese with increased dorsal kyphosis and  lumbar lordosis.  He was diagnosed with arthritis, chronic, dorsal vertebrae.  No significant cardiovascular-renal or pulmonary disability was noted.

In April 1974 the earliest indication of possible cardiovascular and lung problems are shown when the Veteran was hospitalized for acute bronchitis, obesity and mild hypertension.  This record noted that he denied a history of heart disease, hypertension or lung disease, but his symptoms included cough, shortness of breath for 2 weeks and occasional ankle edema.  He was diagnosed with chronic bronchitis in May 1974 with the lung diagnosis changed in September 1974 to COPD, and additional diagnoses of hypertension and obesity given.  None of these records suggested any diagnosed cardiovascular or pulmonary disorders were related in any way to service or his service-connected spinal arthritis.

Hospital records from December 1989 document treatment for symptoms of breathing problems, abdominal distension and ankle edema, with a 2 month history of pneumothorax and impressions during the course of treatment noted to include acute CHF, acute exacerbation of COPD rule out acute pneumonia, rule out ischemic heart disease and rule out myocardial infarction.  X-rays from this hospitalization showed extensive lung disease and electrocardiogram confirmed heart abnormalities.  On discharge the final diagnoses were of acute exacerbation of COPD/emphysema, resolved left lower lobe pneumonia, arteriosclerotic heart disease and anemia secondary to chronic inflammation.  Again there is nothing in these reports to suggest any link to service or his service connected arthritis of the spine.

Records from December 1996 to February 1997 shortly before his death are noted to show treatment for an admitting diagnosis of left lower lobe pneumonia and cardiac dysrhythmia, with the December 1996 records showing a collapsed left lung, during treatment for left lower lobe pneumonia.  In January 1997, chest X-ray confirmed persistent nonspecific left basilar and lingular air space disease.  In February 1997 he was treated for questionable left lower lobe pneumonia, with X-rays in February 1997 confirming placement of a right internal jugular catheter.  None of the records from this hospitalization suggest that any cardiovascular-renal or pulmonary disorder treated was caused or aggravated by service or by his service-connected spinal arthritis.

In support of her claim the appellant submitted medical opinions that include 3 essentially duplicative opinions in letters dated in November 2012, July 2014 and October 2014 from Dr. B. D. who referenced population based studies showing an increased risk of heart failure independent from ischemic cardiac changes in patients with rheumatoid arthritis (RA) compared to those without RA, and that the heart failure may contribute to shorter life expectancy.  Dr. B.D. cited to studies from 2005 and 2006 in support of this opinion.  Dr. B.D. conceded in the July 2014 and October 2014 opinion that he cannot actually comment on the Veteran's case or medical care.  Additionally the appellant submitted a letter dated in May 2011 from a nurse representing the American Heart Association (AHA) stating that after a careful review of research, it does appear that there is a correlation between R.A. and heart failure and was enclosing some AHA articles on the benefits of exercise on the effects of heart failure.  The nurse from AHA conceded that there was not enough data to support the statement that exercise changes morbidity and mortality but it does improve depression and lower systemic vascular disease.  Articles of studies regarding the link between exercise and the prevention of heart disease were also submitted.

The report of a July 2014 VA examination provided the following opinion after review of the pertinent medical evidence and opinions in the claims file.  The examiner gave an opinion that no disease or condition that contributed to the Veteran' s death was caused by or aggravated by his service connected arthritis of the spine.  The examiner pointed out that the Veteran had osteoarthritis (OA) of the spine and not RA.  It was explained that OA is a degenerative joint disease or degenerative arthritis, and is the most common chronic condition of the joints, while RA also affects the joints but is a disease of the immune system and can affect other organs such as the skin, heart and lungs.  The examiner emphasized that there is no physiological connection to or association between degenerative joint disease of the spine and heart disease or congestive heart failure.  The examiner pointed out that this Veteran had several risk factors for heart disease including hypertension, COPD and arteriosclerosis.  These risk factors were the result of his heart disease and CHF and not mobility problems due to osteoarthritis of the spine.  The examiner further pointed out that even if the Veteran had mobility problems due to OA of the spine, this would not preclude him from water based exercising since swimming or walking in a pool is a very good form of exercise and produces no increased pressure or discomfort on the spine.  Furthermore, it was noted that when the veteran was first diagnosed with congestive heart failure, he was 83 years old, and would not have been very active at this time based on his advanced age.

In forming this opinion the July 2014 examiner confirmed review of the claims file with emphasis placed on review of the death certificate showing a cause of death of cardiac arrest due to congestive heart failure with contributing causes of chronic renal insufficiency and chronic obstructive pulmonary disease.  The appellant's contentions that due to the arthritis, the Veteran's inability to walk or use stairs or to get in and out of bed caused his heart to weaken and give out were also noted.  The examiner also noted that the findings from the November 1971 VA examination that diagnosed OA changes of the thoracic and lumbosacral spine and the December 1989 hospitalization acute severe tracheobronchitis, acute exacerbation of COPD, resolved left lower lobe pneumonia, arteriosclerotic heart disease, anemia.  Additionally the Veteran was noted to have a history of treatment for acute CHF, hypertension and a 12 pack year smoking history, having quit 33 years earlier.

Based on a review of the evidence, service connection is not warranted for the cause of the Veteran's death.  There is no evidence of a cardiovascular-renal disorder beginning in service or within a year of his discharge in 1943, or of a chronic lung disease having begun in service.  The appellant has not alleged service connection on either a direct or presumptive basis.  Thus entitlement to service connection pursuant to 38 C.F.R. � 3.303, 3.307, 3.309.

Regarding whether service connection for cause of the Veteran's death as secondary to the lone service-connected disability of arthritis affecting the thoracolumbar spine (specifically the dorsal vertebrae), the Board adopts the opinion from the July 2014 VA examination.  Where a medical expert has fairly considered all the evidence, his or her opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion.  Wray v. Brown, 7 Vet. App.488, 493 (1995).  In providing the opinion that the Veteran's death was less than likely caused by or the result of his service connected lumbar spine disorder, the VA examiner provided detailed rationale to support such opinion.  The examiner also addressed the contentions made by the appellant regarding his inability to exercise, by pointing out the fact that the Veteran had other non-service connected conditions affecting his ability to do so, including his advanced age, and also noted that he could have engaged in low impact pool exercise even with his arthritis.  The examiner noted that other non-service connected disorders including COPD, hypertension and arteriosclerosis were contributing factors to his death.  Regarding the opinions from the AHA nurse and Dr. B.D. regarding the link between RA and heart failure, the VA examiner emphasized the fact that the Veteran actually did not carry a diagnosis of RA.   These opinions are noted to focus on RA as a contributing factor to heart failure.  The Board emphasizes that the VA medical expert reviewed the claims file and provided valid medical analyses to the significant facts of this case in reaching the final conclusions.  In other words, the VA physician did not only provide data and conclusions, but also provided clear and reasoned analyses, that the Court has held is where most of the probative value of a medical opinion comes is derived . See Nieves-Rodriguez v. Peake, 22 Vet App 295; see also Wray v. Brown, supra .

Thus the opinion from the July 2014 VA examiner is of greater probative value than the opinions from the AHA nurse and Dr. B.D., as it points out that the Veteran actually did not have RA.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches").  But a medical opinion may not be discounted solely because the examiner did not review the claims file.  Nieves-Rodriguez v. Peake, 22 Vet. App. at 304.  None of the other medical evidence in the claims folder suggests a diagnosis of RA was ever made.

As the opinions from Dr. B.D. and the AHA nurse discuss possible links between RA, which the Veteran did not actually have, and heart disease/failure, these opinions bear little relevance to the Veteran's situation.  Dr. B.D. conceded as much in his follow-up letters of July 2014 and October 2014 when he admitted that he was not personally aware of the Veteran's actual medical conditions or treatments.  The May 2011 letter from the AHA nurse and the medical articles regarding the links between arthritis and heart disease and exercise are also general in nature and do not speak to the Veteran's specific situation.  The Board is persuaded that the opinion of the VA physician from the July 2014 VA examination is most persuasive in that this clinician reviewed the Veteran's medical records and provided a rationale for the opinion given.  See Prejean v. West, Wray v. Brown, supra.

Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The general principle that lack of exercise, including inactivity due to spinal disability, may result in heart and lung problems is commonly known and, therefore, the appellant's claim that spinal disability led to cardio-pulmonary disease that resulted in the Veteran's death is competent evidence.  However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention.  Not all competent evidence is of equal value.  The Board finds the 2014 VA examination report more probative than the appellant's statements.  The examiner is a medical professional and was able to review the overall record, including the Veteran's history and the appellant's opinions.

The Board is not permitted to engage in speculation as to medical causation issues, but "must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision."  See Smith v. Brown, 8 Vet. App. 546, 553 (1996).  Here, a clear preponderance of the evidence is against the appellant's claim of entitlement to service connection for the cause of the Veteran's death.

ORDER

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

____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: K J ALIBRANDO

disposition: granted

text: Service connection for PTSD is granted.

text:
Citation Nr: 1523000
Decision Date: 06/01/15    Archive Date: 06/16/15

DOCKET NO.  10-18 356A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois

THE ISSUES

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

2.  Entitlement to service connection for cheek residuals (swelling of the cheek and jaw) due to an in-service tooth extraction.

3.  Entitlement to service connection for eye residuals (swelling and closure) due to an in-service tooth extraction.

4.  Entitlement to service connection for a shrapnel injury of the left forehead.

5.  Entitlement to service connection for cold injury residuals of the hands and feet.

6.  Entitlement to service connection for ingrown toenails, claimed as secondary to cold injury.

7.  Entitlement to a higher initial rating, in excess of 20 percent, for degenerative joint disease of the left knee.

8.  Entitlement to a higher initial rating, in excess of 10 percent, for a left ankle condition with degenerative changes.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Christine C. Kung, Counsel

INTRODUCTION

The Veteran served on active duty from September 1952 to August 1954.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  Jurisdiction of the appeal was subsequently transferred to the RO in Chicago, Illinois.

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

The issue of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) has been raised by the record in a September 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action.

The issues of entitlement to service connection for cheek and eye residuals due to an in-service tooth extraction, a shrapnel injury of the left forehead, cold injury residuals of the hands and feet, and ingrown toenails, claimed as secondary to cold injury, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran had combat service in the Korean War.

2.  PTSD is shown by a VA psychologist to be related to a fear of hostile military or terrorist activity

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. �� 1101, 1110, 5107, 5121 (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.326(a) (2014).  The Board is granting service connection for PTSD.  Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required.

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004);
see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown,
7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  In this case, PTSD is not a "chronic diseases" listed under 38 C.F.R. � 3.309(a) and the Veteran has not been diagnosed with psychosis; therefore, the presumptive provisions of 38 C.F.R. � 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. � 1154(a); 38 C.F.R.
� 3.304(f).  The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy."  Id.

If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor.
38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(f).  No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service."  Id.

If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements.  See Moreau v. Brown, 9 Vet. App. 389, 394 (1996).

The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991).  Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.

If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. � 3.304(f)(3).

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

(CONTINUED ON NEXT PAGE)

Service Connection Analysis

The Veteran contends that he engaged in combat with the enemy during his service in Korea during the Korean War.  He contends that PTSD is related to the in-service combat stressors.  The Board finds that the Veteran's identified stressors are related to combat or to a fear of hostile military or terrorist activity.  After a review of all the evidence, the Board finds that the Veteran has a current diagnosis of PTSD which is shown by a VA psychologist to be related to a fear of hostile military or terrorist activity.

The Veteran contends in a July 2008 statement that he engaged in combat during service in the Korean War.  He has reported that he served as a forward observer with the 1st Field Artillery Observation Battalion, and that he was stationed forward of the front lines to observe the enemy, direct attacks on their positions, and report damage.  He reported exposure to enemy artillery and heavy mortar fire.  During the course of VA mental health treatment in December 2007, the Veteran reported that his reconnaissance duty exposed him to constant enemy artillery fire.

Service treatment records and service personnel records are not available for review; however, the Veteran has submitted a copy of his Form DD-214, which shows that he served in Battery A, 1st Field Artillery, Observation Battalion, and had service in Korea during the Korean War.  He was awarded the Korean Service Ribbon with three bronze service stars.  He has also submitted a buddy statement from an individual serving in the same unit who attests to the Veteran's account regarding his service.  The Board finds that the evidence for and against combat engagement is at least in equipoise, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran engaged in combat with the enemy and that the alleged stressors are related to combat.  Accordingly, the Board finds that the Veteran's lay statements are sufficient to verify the occurrence of his claimed combat stressors as they consistent with the circumstances of his Korean War service.  See 38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(f).

After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the questions of whether the Veteran has PTSD, and whether such disorder was incurred in service.  Service treatment records are not available in this case.  VA treatment records show that the Veteran was initially evaluated for PTSD in December 2007, and at that time, reported that he had been suffering from symptoms of PTSD since his return from Korea.

There is both favorable and unfavorable evidence with respect to whether the Veteran has a current diagnosis of PTSD related to an identified in-service stressor. The Veteran was afforded a VA examination to address PTSD in July 2011.  A mental status examination was completed; however, the VA examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV criteria, reasoning that there were no behavioral or social changes, re-experiencing symptoms, heightened psychological arousal due to service, or any relationship to a fear of hostile military or terrorist activity.  The VA examiner indicated that the Veteran's identified stressor was not adequate to support a diagnosis of PTSD. The Board notes, however, that a claimed PTSD stressor was not clearly identified by the July 2011 examiner during the course of the examination.

The favorable evidence includes a January 2014 medical opinion from the Veteran's VA treating psychologist who diagnosed the Veteran with PTSD related to Korean War combat trauma.  Stressors were stated to include, but were not limited to, being nearly killed by collapsing bunkers due to heavy shelling and exposure to sustained and unrelenting enemy attack on Pork Chop Hill and Hill 347.  Because the Veteran is shown to have engaged in combat with the enemy, the Board finds that his lay statements are sufficient to verify the occurrence of his claimed combat stressors.  Further, the Board finds that the January 2014 opinion tends to be supported by a diagnoses of PTSD shown in VA treatment records during December 2007 Mental Health Initial Evaluation completed by a resident nurse.  A complete in-service and psychiatric history was obtained at the time of the December 2007 mental health evaluation, and the Veteran was diagnosed with PTSD associated with his combat service in Korea.

The Board finds that the January 2014 provided by the Veteran's treating VA psychologist, when considered with VA mental health treatment records, is probative as it was based on an accurate factual background, a discussion of the Veteran's combat service, and psychiatric evaluation of the Veteran.  See Reonal, 5 Vet. App. at 461; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion").  Moreover, the Board finds that the VA treating psychologist is familiar with the Veteran's history of psychiatric treatment.  The VA psychologist has provided DSM-IV diagnoses of PTSD related to the Veteran's combat service in Korea.  Moreover, the Board finds that a July 2011 VA examiner did not adequately identify the Veteran's claimed in-service stressor related to his combat experience during the Korean War.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has currently diagnosed PTSD related to a fear of hostile military or terrorist activity during the Korean War.

	(CONTINUED ON NEXT PAGE)

ORDER

Service connection for PTSD is granted.

REMAND

The Veteran requested a hearing before a Decision Review Officer (DRO) in March 2014 to address the appeal for service connection for cheek residuals (swelling of the cheek and jaw) and eye residuals (swelling and closure) due to an in-service tooth extraction; a shrapnel injury of the left forehead; cold injury residuals of the hands and feet; and ingrown toenails, claimed as secondary to cold injury.  The record shows that the Veteran has not been afforded a DRO hearing and he has not withdrawn his DRO hearing request.  Accordingly, the Board finds that a remand is warranted so that a DRO hearing can be scheduled.

The Board remanded the appeal with respect to the above claims for service connection in January 2013 so the Veteran could be scheduled for a videoconference hearing before the Board at the RO.  The Veteran was scheduled for a June 2013 Board videoconference hearing.  There is additional evidence indicating that the Veteran should be afforded another opportunity for a Board hearing.  There is an indication in the record that the Veteran did not appear for the June 2013 hearing.  There is a September 2014 letter from the Veteran to his representative indicated that the the Veteran was advised to reschedule the hearing to Chicago so he could be represented by the individual.  The Veteran indicated that he had gotten no response or reschedule at that point.  In the April 2015 Informal Hearing Presentative, the Veteran's representative indicated that the Veteran should be afforded the requested Board hearing.

The Veteran, indicated, in September 2014 correspondence that he submitted a NOD to the RO addressing the assigned initial ratings for his service-connected left knee and left ankle, but had not received a response to the NOD.  While the RO informed the Veteran, in January 2014 correspondence, that a NOD to the May 2013 rating decision had been received; to date, the RO has not issued a statement of the case addressing the Veteran's appeal.  The filing of a notice of disagreement places a claim in appellate status.  The failure to issue a statement of the case in such a circumstance renders a claim procedurally defective and necessitates a remand.  See 38 C.F.R. �� 19.9, 20.200, 20.201 (2014); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996).  The purpose of the remand is to give the RO an opportunity to cure this defect by issuing a statement of the case.  Thereafter, the claims file should be returned to the Board only if the Veteran perfects his appeal for a waiver of overpayment in a timely manner.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required and has no authority to decide the claim).

Accordingly, the case is REMANDED for the following action:

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

1.  Return the case to the AOJ so that both the requested DRO and Board videoconference hearings can be scheduled to address the appeal for service connection for cheek residuals (swelling of the cheek and jaw) and eye residuals (swelling and closure) due to an in-service tooth extraction; a shrapnel injury of the left forehead; cold injury residuals of the hands and feet; and ingrown toenails, claimed as secondary to cold injury.  The AOJ should provide notice of any scheduled hearing to the Veteran and his representative, a copy of which should be associated with the claims file.

2.  After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted.  The AOJ should take any additional development as deemed necessary.

3.  The AOJ should issue a statement of the case addressing entitlement to a higher initial rating, in excess of 20 percent, for degenerative joint disease of the left knee and entitlement to a higher initial rating, in excess of 10 percent, for a left ankle condition with degenerative changes.  The Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal.  The AOJ should advise the Veteran that the appeal will not be returned to the Board for appellate consideration following the issuance of the statement of the case unless he perfects his appeal.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

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

Department of Veterans Affairs


judge_norm: MICHAEL MARTIN

disposition: remanded

text:
Citation Nr: 1526000
Decision Date: 06/17/15    Archive Date: 06/26/15

DOCKET NO.  10-13 652	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in
Wichita, Kansas

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for a back condition (also claimed as a cervical spine condition).

3.  Entitlement to an initial rating in excess of 50 percent for bipolar disorder.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

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

ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from June 1988 to July 1989.  These matters are before the Board of Veterans' Appeals (Board) on appeal from separate rating decisions by the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO) which in June 2009, denied service connection for tinnitus; in March 2010, granted service connection for bipolar disorder, rated 50 percent; and in June 2011, denied service connection for a back disability.  In September 2012, the claim for service connection for tinnitus was remanded for additional development.  In October 2013, all of the claims were remanded for further development.

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

REMAND

A preliminary review of the record found that further development is necessary before the claims on appeal can be decided.  As an initial matter, the Veteran's claims must be remanded for Social Security Administration (SSA) records to be secured (as referred to in an October 2014 deferred rating decision).  Medical records considered in connection with a claim for SSA disability benefits are constructively of record, may contain pertinent information, and must be secured.  See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).

Additionally, because there has not been substantial compliance with previous remand instructions with respect to the Veteran's claims of service connection for tinnitus and a back disability, an initial rating in excess of 50 percent for bipolar disorder, and entitlement to a TDIU, a remand to ensure compliance is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998).

The October 2013 remand instructed the AOJ to provide notice to the Veteran with respect to his TDIU claim, obtain VA treatment records and vocational rehabilitation records associated with his claims, and secure medical opinions that addressed the Veteran's claim of service connection for tinnitus, his claim for an increased rating for bipolar disorder, and his claim of entitlement to a TDIU.  The Board further directed that, following the development requested, the Veteran's claims on appeal should be readjudicated.

The Board notes that the record does not show that the Veteran was provided with any notice with respect to his TDIU claim.  Additionally, the record does not include any vocational rehabilitation records.  Although there is a notation that such records were received in January 2014, they are not included in the file.  Further, it does not appear that the AOJ readjudicated the Veteran's claims as directed by the Board in its October 2013 remand.  In light of this, the Board finds that an additional remand is necessary so that the AOJ may complete any development warranted and readjudicate the Veteran's claims, as previously directed in the October 2013 Board remand.  See Stegall, supra.

Accordingly, the case is REMANDED for the following:

1. The AOJ should send VCAA notice regarding the issue of TDIU.

2.  The AOJ should secure for the record a copy of the SSA determination on the Veteran's claim for SSA disability benefits and copies of all medical records considered in connection with that determination.  If no such records exist, it should be so noted in the record (with explanation), and the Veteran should be so advised.

3.  Secure for the record copies of the any and all of the Veteran's vocational rehabilitation records.  If vocational rehabilitation records are unavailable, a finding of unavailability with explanation should be associated with the record.

4.  Following the completion of any further development warranted regarding the Veteran's claims, readjudicate the matters, as previously directed in the October 2013 Board remand.  See Stegall, supra.  If any remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


judge_norm: DAVID L WIGHT

text:
Citation Nr: 1527000
Decision Date: 06/24/15    Archive Date: 06/30/15

DOCKET NO.  11-05 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to service connection for attention deficit disorder with hyperactivity (ADHD).

ATTORNEY FOR THE BOARD

K. M. Georgiev, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 2006 to July 2009.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a
March 2010 rating decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in Waco, Texas.

This matter was remanded by the Board by decision dated April 2014, and it is again before the Board.

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

REMAND

The Board regrets the further delay another remand will cause the Veteran, but to decide this case based on the current evidence of record would be unfairly prejudicial to him.

A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms.  See Stegall v. West, 11 Vet. App. 268, 271   (1998).  In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance."  Id.

The April 2014 Board remand directed a VA examination addendum be obtained, in part to opine in part whether the Veteran's ADHD was subject to a superimposed disease or injury during service, and whether the ADHD progressed at an abnormally high rate during service.  The Board finds the VA examiner's response to these questions inadequate, and so a new VA examination addendum is required.

In April 2014 and January 2015 opinions, the VA examiner stated that "ADHD would be considered a congenital defect as the Veteran was born with the condition.  The Veteran first experienced symptoms of ADHD as a youngster before he entered the military.  For an accurate diagnosis of ADHD, problems with attention and concentration must occur before the age of 12."

In response to the inquiry of whether the Veteran's ADHD was subject to a superimposed disease or injury during service, the examiner responded that: "It is less likely than not that the Veteran's ADHD was aggravated by another disease or injury."  This response does not answer the Board's question, as the Board asked whether the Veteran's ADHD was subject to a superimposed disease or injury during service, not whether there was aggravation.

Further, the Board decision ordered that: "The examiner should provide a complete rationale for any opinion provided."  In her response, the examiner included no rationale in support of her opinion.

Similarly, in response to the inquiry as to whether the ADHD progressed at an abnormally high rate during service, the examiner opined: "It is less likely than not the Veteran's condition progressed to an abnormally high rate during service."  Again, contrary to the Board's order, the examiner included no rationale explaining her opinion.

Accordingly, the case is REMANDED for the following action:

1.  Request that the January 2012 VA examiner, or another appropriate physician, offer an addendum opinion regarding the Veteran's ADHD.  The entire claims file, including the electronic file and Board remands, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

After reviewing the record, the examiner should offer an opinion as
to the following:

(a)  Is it at least as likely as not that ADHD is a congenital defect?  If so, is it at least as likely as not that ADHD was subject to a superimposed disease or injury during service?

(b)  If it is at least as likely as not that ADHD is a congenital disease?  If so, is it at least as likely as not that it manifested during service OR preexisted service, but progressed at an abnormally high rate during service?

The examiner should provide a complete rationale for any opinion provided.  Conversely, if the examiner concludes that an etiological opinion cannot be provided, he or she should clearly and specifically specify in the examination report, with an explanation as to why.

If further examination of the Veteran is needed, he should be scheduled for an examination.  The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause to so report.  See 38 C.F.R.
� 3.655 (2014).

2.  Thereafter, readjudicate the claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto.  The matter should then be returned to the Board, if in order, for further appellate review.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


judge_norm: DELYVONNE M WHITEHEAD

disposition: denied

text:
Citation Nr: 1528000
Decision Date: 06/30/15    Archive Date: 07/09/15

DOCKET NO. 13-11 265	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 2001 to August 2005.

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

FINDING OF FACT

The most competent and probative evidence of record does not reflect that the Veteran currently has a hearing loss disability for VA purposes.

CONCLUSION OF LAW

The criteria for service connection for a bilateral hearing loss disability have not been met.  38 U.S.C.A. �� 11101, 1112, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2014).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. VCAA Duty to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  A VA letter issued in October 2010 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating.

With regard to the duty to assist, the claims file contains the Veteran's service treatment records (STRs), service personnel records, VA medical records, examination reports, and the statements of the Veteran.  The Veteran was also scheduled for a hearing in May 2015 but did not attend and did not provide good cause for his absence.  As such, his request for a hearing is deemed withdrawn.  38 C.F.R. � 20.704.

Lastly, the Veteran was provided a VA audiological examination in September 2012.  The VA examiner personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes.  Further, neither the Veteran nor his representative has challenged the adequacy of the examination.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the issue on appeal has been met.  38 C.F.R. � 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

II. General Legal Criteria

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. � 1110.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. � 3.303.

In order to establish direct service connection for a disability, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

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

III. Factual Background and Analysis

The Veteran contends that he has experienced bilateral hearing loss as a result of in-service noise exposure.  The Veteran asserts that his work as on the flight line exposed him to noise from the flight deck.

The Veteran's DD-214's reflect that his primary specialty was a transportation specialist.  As such, his contentions with regard to noise exposure or acoustic trauma in service are consistent with the circumstances of his service.  38 U.S.C.A. � 1154(a) (West 2014).  As such, the Board finds his assertions as to noise exposure to be competent and credible.

In September 2012 the Veteran was provided a VA audiological examination.  The examiner reviewed the claims file, medical history, and noted the Veteran's in-service noise exposure.  A puretone threshold and Maryland CNC speech recognition test were also conducted, the results of which were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
20
25
15
20
20
LEFT
25
25
20
25
30

Speech audiometry revealed speech recognition abolition of 98 percent for the right ear and 96 percent for the left ear.  The examiner reported that hearing loss was not disabling per 38 C.F.R. � 3.385 and therefore did not provide an opinion as to the etiology of the Veteran's alleged hearing loss.

As noted above, impaired hearing is considered a disability for VA purposes when the auditory threshold at any frequency (500 HZ - 4000 HZ) is 40 decibels or greater, or when the threshold is at least 26 decibels at any three frequencies (500 HZ - 4000 HZ) or when the Maryland CNC test scores are less than 94 percent.

The evidence in this case reflects that the Veteran does not currently have a hearing loss disability for VA purposes in either ear.  As described, the results of the audiometric testing in September 2012 do not reflect that the Veteran has a hearing loss disability as established by 38 C.F.R. � 3.385.  The Veteran has not challenged the accuracy of the September 2012 audiometric results and has not submitted any additional evidence in support of his contention of current hearing loss that meets the threshold requirements set out by 38 C.F.R. � 3.385.  While the Veteran is competent to report what comes to him through his senses (see Layno v. Brown, 6 Vet. App. 465 (1994)), including diminished hearing capacity, he is not competent to assess that he has a hearing loss disability for VA purposes.  Such determination may only be made by audiometric testing, and CNC Word List speech recognition testing.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

In summary, the Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported bilateral hearing loss; and, in the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  There is also no competent evidence of a hearing loss disability for VA purposes at any point during the claims period or shortly before.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also, Romanowsky v. Shinseki, 26 Vet. App. 289 (2013).  Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied.

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

____________________________________________
DELYVONNE M. WHITEHEAD
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: BARBARA B COPELAND

text:
Citation Nr: 1530000
Decision Date: 07/14/15    Archive Date: 07/21/15

DOCKET NO.  09-36 991	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to service connection for benign prostate hypertrophy (BPH), to include as due to exposure to herbicides.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

H. Yoo, Counsel

INTRODUCTION

The Veteran served on active duty from January 1966 to January 1969.

This matter is on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The issues of entitlement to service connection for myeloma and peripheral neuropathy were also denied by the RO in June 2008 and were timely appealed in the December 2008 Notice of Disagreement.  Subsequently, the Statement of the Case, issued in August 2009, denied these issues.  According to the Veteran's Substantive Appeal, dated September 2009, he stated he did not wish to pursue these claims.  Therefore, the claims of entitlement to service connection for myeloma and peripheral neuropathy are not on appeal and will not be addressed.

The Board additionally notes that the Veteran's electronic records have been reviewed in conjunction with the adjudication of the claims currently on appeal.

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

REMAND

A remand is required in this matter.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. �� 5107(a) 5103A (West 2014); 38 C.F.R. � 3.159(c) (2014).

The Veteran has claimed that his benign prostatic hypertrophy is related to his military service, namely herbicide exposure while serving in Vietnam.  The Veteran served in the Republic of Vietnam during the Vietnam War era, and, as such, he was presumptively exposed to herbicides therein.  See 38 U.S.C.A. � 1116; 38 C.F.R. � 3.307(a)(6)(i).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, prostate cancer shall be service-connected if the requirements of 38 C.F.R. � 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. � 3.307(d) (2014) are also satisfied.  38 C.F.R. � 3.309(e) (2014).

The Board notes that a review of the records does not demonstrate that the Veteran was diagnosed with prostate cancer.  There is, however, evidence within the record that the Veteran has been diagnosed with, and treated for, benign prostatic hypertrophy.

Benign prostatic hypertrophy is not among the diseases presumed associated with herbicide exposure.  However, given the Veteran's contention that "it is presumptive that Agent Orange affects the prostate and causes prostate cancer [therefore] a lesser condition/problem with the prostate could be the result of exposure..." and that the Veteran's herbicide exposure has been conceded, the agency of original jurisdiction should obtain a VA examination and medical opinion regarding the nature and etiology of this disorder.  38 C.F.R. � 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007).

Accordingly, the case is REMANDED for the following action:

1. Copies of updated treatment records should be obtained and added to the record.

2. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination with an appropriate VA examiner to determine the nature and etiology of any current prostate disorder, to include benign prostatic hypertrophy.  Any studies, tests, and evaluations deemed necessary by the examiner should be performed.  The VA examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements.

The VA examiner should identify any current prostate disorder present, including benign prostatic hypertrophy.  The VA examiner should then opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any prostate disorder manifested during or is otherwise related to the Veteran's military service, to include herbicide exposure therein.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the VA examiner should provide a fully reasoned explanation.

A clear rationale for the requested opinion shall be provided.  If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the VA examiner shall explain whether the inability to provide an opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures must be implemented.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, an adequate opportunity to respond must be provided, and the appeal must thereafter be returned to the Board for further appellate review.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).