judge_norm: U R POWELL

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).

text:
Citation Nr: 0705000
Decision Date: 02/21/07    Archive Date: 02/27/07

DOCKET NO.  03-32 647	)	DATE
	)
	)

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

THE ISSUE

1.  Entitlement to an increased rating for post-traumatic
stress disorder, evaluated as 30 percent disabling prior to
May 18, 2004, 50 percent disabling from May 18, 2004, and 70
percent disabling from July 1, 2006.

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

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

M.C. Peltzer, Counsel

INTRODUCTION

The veteran served on active duty from August 1968 to January
1970.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2003 rating decision issued
by the Regional Office (RO) of the Department of Veterans
Affairs (VA) located in Columbia, South Carolina.  The Board
issued a remand in March 2005 pertaining to this appeal; the
requested development is now complete and this matter is
ready for appellate review.

During the pendency of this appeal the veteran's disability
rating was increased to 50 percent, effective from May 18,
2004.  Additionally, a total rating based on hospital
treatment or hospitalization under 38 C.F.R. � 4.29 was
assigned from May 3, 2006, through June 30, 2006.  A rating
of 70 percent was assigned effective from July 1, 2006.

The TDIU rating claim is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  Prior to May 18, 2004, the veteran's PTSD is not
manifested by the type and degree of symptoms that results in
occupational and social impairment with reduced reliability
and productivity.

2.  From May 18, 2004, the veteran's PTSD is manifested by
the type and degree of symptoms that results in occupational
and social impairment with deficiencies in most areas but
less than total occupational and social impairment.

CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 30
percent for PTSD are not met prior to May 18, 2004.
38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 4.3, 4.7,
4.10, 4.21, 4.130, Diagnostic Code 9411 (2006).

2.  The criteria for a 70 percent disability rating, but no
more, for PTSD are met from May 18, 2004.  38 U.S.C.A.
�� 1155, 5107 (West 2002); 38 C.F.R. �� 3.400, 4.3, 4.7,
4.10, 4.21, 4.130, Diagnostic Code 9411 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. ��
3.102, 3.156(a), 3.159 and 3.326(a) (2006).

Duty to Notify

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a)
(West 2002); 38 C.F.R. � 3.159(b) (2006); Quartuccio v.
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. � 3.159(b)(1).  VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

Further regarding the first notice element indicated above,
on March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-
1917 & 02-1506 (U.S. Vet. App. March 3, 2006).  The Court in
Dingess/Hartman holds that the VCAA notice requirements of 38
U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b) apply to all five
elements of a "service connection" claim.  As previously
defined by the courts, those five elements include: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.  Upon receipt of an application for "service
connection" VA therefore is required to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
This includes notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.  Because the Court's decision
is premised on the five elements of a service connection
claim, it is the consensus opinion within the VA that the
analysis employed can be analogously applied to any matter
that involves any one of the five elements of a "service
connection" claim, to include an increased rating claim.

VA satisfied its duty to notify by means of letters from the
AOJ to the appellant in July 2003 and May 2005.  The letters
informed the appellant of what evidence was required to
substantiate an increased rating, and of his and VA's
respective duties for obtaining evidence.  The latter letter
requested that he submit any evidence in his possession and
he was notified of the type of evidence necessary to
establish a potential effective date by letter in June 2006.

Here, the Board finds that any defect with respect to the
timing of completion of the VCAA notice requirement was also
harmless error.  Although additional notice was provided to
the veteran after the initial adjudication, the claim was
thereafter readjudicated.  The content of the notice provided
to the veteran fully complied with the requirements of 38
U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) regarding VA's
duty to notify.  Not only has the veteran been provided with
every opportunity to submit evidence and argument in support
of his claims and to respond to VA notices, but the actions
taken by VA have essentially cured the error in the timing of
notice.  Further, the Board finds that the purpose behind the
notice requirement has been satisfied because the veteran has
been afforded a meaningful opportunity to participate
effectively in the processing of his claim.  For these
reasons, it is not prejudicial to the veteran for the Board
to proceed to finally decide this appeal.

Duty to Assist

With regard to the duty to assist, the claims file contains
VA medical records, to include VA examination reports, as
well VetCenter and private medical records.  The Board has
carefully reviewed the veteran's statements in support of
appeal and concludes that he has not identified further
evidence not already of record for which he has not been
afforded the opportunity to either submit or authorize VA to
obtain.  The Board has also perused the medical records for
references to additional treatment reports not of record, but
has found nothing to suggest that there is any outstanding
evidence with respect to the veteran's claim which VA has
been authorized to obtain.  See also March 2006
correspondence (veteran indicates he has no additional
evidence to submit).  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 his claim.  Essentially,
all available evidence that could substantiate the claim has
been obtained.

Increased Rating Claim

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

Disability Prior to May 18, 2004

Prior to May 18, 2004, the veteran was rated as 30 percent
disabled due to his service-connected PTSD.  A 50 percent
disability rating contemplates a psychiatric disability
manifested by occupational and social impairment with reduced
reliability and productivity, due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; more than weekly panic attacks;
difficulty in understanding complex commands; impairment of
short- and long-term memory; impaired judgment; impaired
abstract thinking; disturbances of motivation and mood; and
difficulty in establishing and maintaining effective work and
social relationships.  38 C.F.R. � 4.130, Diagnostic Code
9411 (2006).  The symptoms listed are not intended to
constitute an exhaustive list, but rather serve as examples
of the type and degree of the symptoms, or their effects,
that would justify a particular rating for PTSD.  See
Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In July 2003 correspondence the veteran indicated that he
socialized with people less and less and that he continued to
suffer from three to four nightmares per week.  He was not in
receipt of mental health treatment or therapy and had stopped
taking his medication prescribed to help with his problems
sleeping.  See also July 2003 VA examination report.  The
July 2003 VA examination report indicates he was isolated and
emotionally detached.  The evidence prior to May 18, 2004, is
not reflective of the type and degree of symptoms that has
the psychiatric effects that more closely approximate
occupational and social impairment with reduced reliability
and productivity.   Instead, the July 2003 VA examination
report indicates that upon examination he was alert,
oriented, attentive, with a generally euthymic mood and a
mildly constricted affect.  He was cooperative and pleasant
with the examiner, had logical and coherent thought processes
with no delusions or hallucinations.  He had no suicidal or
homicidal ideations and was of average intelligence with fair
insight.  The examiner characterized the veteran's PTSD as
mild to moderate and a global assessment of functioning (GAF)
score of 60 was assigned.  GAF scores of 51 to 60 are
reflective of moderate symptoms or moderate difficulty in
social or occupational functioning on a hypothetical
continuum of mental health and illness.  Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994).  As
such, the evidence does not reveal an overall psychiatric
disability manifested by the type and degree of symptoms, or
the effects of, which more closely approximate the criteria
for a disability rating in excess of 30 percent prior to May
18, 2004.

Disability from May 18, 2004

On May 18, 2004, the veteran began individual and group
therapy from a private psychologist.  See medical records
received in February 2006.  Thereafter the veteran's PTSD
disability rating was increased to 50 percent with a 70
percent disability rating established effective July 1, 2006.
A 70 percent rating contemplates 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 that
interfere with routine activities; speech that is
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; and inability to establish and maintain effective
relationships.  38 C.F.R. � 4.130, Diagnostic Code 9411
(2006).

Lay statements submitted in support of claim reveal the
veteran's problems with nightmares and driving.  The group
and individual therapy records contain GAF scores reflective
of serious symptoms or serious difficulty in social or
occupational functioning on the hypothetical continuum of
mental health and illness.  Diagnostic and Statistical Manual
of Mental Disorders (4th ed. 1994).  The records also reveal
a disability manifested by significant symptoms with limited
insight, anxiety, tension, and isolative behavior to avoid
people and situations that triggered an increase in his
anxiety symptoms.  A February 2006 VA medical record
indicates the veteran was hyper-vigilant with an intensity
that at times that prevented him from hearing the examiner.
The record also indicates the veteran worked with his
brother-in-law doing different jobs and his mood and affect
were anxious.  The April 2006 VA examination report reflects
his half-time employment enabled him to not have to interact
with others people; he had difficulties with trust and sense
of estrangement.  The report also indicates he decreased his
driving due to problems with road rage and the examiner
indicated he had decreased concentration and memory and
irritability with periodic homicidal thoughts.

Based on his symptoms, the veteran was recommended for an in-
patient therapy program which he began on May 3, 2006.  As
previously indicated, he received a 100 percent disability
rating under 38 C.F.R. � 4.29 for this treatment and the
evidence created during this period will be utilized to the
extent it shows the veteran's level of disability prior to or
subsequent to the period of total compensation.  See
38 C.F.R. � 4.14 (2006).  Following his in-patient therapy,
his VA medical records indicate his symptoms of depression
were mostly resolved, he was getting more sleep, resting
better, his PTSD symptoms were much improved, and he was
trying to socialize more (although with limited success).
The veteran's PTSD is rated as 70 percent disabling
subsequent to his in-patient therapy.  See September 2006
rating decision.  However, based on the effects of his
symptomotology, especially those effects related to his
isolative behavior, his disability approximated occupational
and social impairment with deficiencies in most areas prior
to his in-patient therapy program such that a 70 percent is
warranted from May 18, 2004, the date it is factually
ascertainable from the evidence of record that his disability
had worsened.

However, at no point on or after May 18, 2004 (for the
periods currently under consideration) did the veteran's
disability picture approximate the criteria for a 100 percent
disability rating, which is warranted for total occupational
and social impairment due to such symptoms as: gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; and memory loss for names of close relatives,
own occupation, or own name.  38 C.F.R. � 4.130, Diagnostic
Code 9411 (2006).  The evidence has consistently shown the
veteran is oriented with no delusions or hallucinations.
Moreover, while an April 2005 VA medical record indicates the
veteran's grooming could use some work, he presented to VA
examinations neatly but casually dressed and groomed.

Additionally, the April 2006 VA examination report indicates
his concentration and memory were decreased but upon
examination he demonstrated a capacity for abstract thinking
and his thought processes were logical and goal-directed.
The report also indicates that when he was angry he had
homicidal thoughts but had not had any in the preceding
years.  He was also not suicidal.  The June 2006 VA discharge
summary indicates the veteran was unemployable and contains a
GAF score reflective of some impairment in reality testing or
communication or major impairment in several areas such as
work, judgment, thinking or mood.  However, a July 2006 VA
medical record indicates the veteran was very enthusiastic
about how the in-patient program had helped him and his mood
and affect were appropriate, very bright and happy.  An
August 2006 VA medical record indicates the veteran felt his
PTSD symptoms were the same as they were from when he had
returned from the program.  As such, the evidence is not
indicative of the type and degree of symptoms, or their
effects, contemplated by the regulatory criteria for a 100
percent disability rating.  As such, the weight of the
evidence is against a disability rating in excess of 70
percent on and after May 18, 2004.

In reaching this decision, the Board notes the evidence does
not show that the veteran's service-connected psychiatric
disability is in any way exceptional or unusual.  The
evidence of record is not reflective of an exceptional
disability picture not contemplated by the regular schedular
criteria.  See Moyer v. Derwinski, 2 Vet. App. 289, 293
(1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) (noting that the disability rating itself is
recognition that industrial capabilities are impaired).
Accordingly, the Board finds that the veteran's disability
picture does not warrant the assignment of an extraschedular
rating pursuant to 38 C.F.R. � 3.321(b) (2006).

ORDER

A disability rating higher than 30 percent prior to May 18,
2004, for PTSD is denied.

A 70 percent disability rating, but no more, for PTSD is
granted from May 18, 2004, subject to the laws and
regulations governing the disbursement of monetary benefits.

REMAND

The veteran has argued that his service-connected PTSD
renders him unemployable.  See e.g. January 2007 informal
hearing presentation.  While, as indicated above, the
veteran's disability picture does not approximate the
regulatory criteria for a 100 percent disability rating, the
Board infers that the veteran has raised a new claim of
entitlement to a TDIU rating that must be addressed.  See
Norris v. West, 12 Vet. App. 413 (1999); Roberson v.
Principi, 251 F.3d 1378 (2001).  Prior to adjudication of the
TDIU claim, the veteran should be notified of the evidence
required for a TDIU rating as per the Veterans Claims
Assistance Act of 2000 (VCAA).  Accordingly, this case is
REMANDED for the following:

1.  Please send the veteran VCAA notice
that complies with all statutory and case
law requirements to include notice of the
evidence required for a TDIU rating, and
for assignment of an effective date in
the event of award of the benefit sought.

2.  After compliance with all due process
concerns raised by the evidence of
record, adjudicate the TDIU rating claim.
If the benefit sought is denied, the
veteran should be advised of the
necessity of perfecting an appeal if he
wants the Board to consider the claim.

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2005).

____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: ALAN S PEEVY

disposition: denied

text:
Citation Nr: 0706000
Decision Date: 03/01/07    Archive Date: 03/13/07

DOCKET NO.  98-20 889	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an effective date prior to June 15, 1997, for
the grant of service connection for post-traumatic stress
disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel

INTRODUCTION

The veteran served on active duty from March 1963 to March
1966.

This appeal comes before the Board of Veterans' Appeals
(Board) from a May 1998 rating decision by a Regional Office
(RO) of the United States Department of Veterans Affairs
(VA).  In that decision, the RO granted service connection
for PTSD, and assigned an effective date for service
connection of June 15, 1997.
In October 2002, the veteran withdrew the following issues
from appellate consideration:  service connection for
prostatitis, service connection for a low back disability,
service connection for a cervical spine disability, and an
increased rating for PTSD.  The case was remanded by the
Board in May 2003.

FINDINGS OF FACT

1.  In a July 1987 rating decision, the RO denied entitlement
to service connection for PTSD on the basis that the evidence
did not show that the veteran suffered from PTSD; the veteran
did not file a timely notice of disagreement to initiate an
appeal from that determination.

2.  The veteran was admitted to a VA medical facility for
treatment of PTSD on June 15, 1997.

3.  On June 19, 1997, VA received the veteran's request to
reopen his claim of service connection for PTSD.

4.  The RO subsequently granted service connection for PTSD
and assigned an effective date of June 15, 1997.

CONCLUSIONS OF LAW

1.  The July 1987 rating decision is final.  38 U.S.C.A.
� 7105 (West 2002).

2.  The criteria for assignment of an effective date prior to
June 15, 1997, for the grant of service connection for PTSD
have not been met.  38 U.S.C.A. � 5110 (West 2002); 38 C.F.R.
�� 3.400, 20.1100 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations address VA's duties to notify and
claimants in the development of evidence relevant to their
claims for VA benefits.  38 U.S.C.A. �� 5102, 5103, 5103A,
5107; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).

The United States Court of Appeals for Veterans Claims
(Court) has held that a claimant is entitled to VCAA notice
prior to initial adjudication of the claim.  Pelegrini v.
Principi, 18 Vet. App. 112, 120 (2004).  The Court explained
in Pelegrini, however, that failure of an agency of original
jurisdiction (AOJ) (in this case, the RO) to give a claimant
the notices required under the VCAA prior to an initial
unfavorable adjudication of the claim does not require the
remedy of voiding the AOJ action.  The Court stated that it
is sufficient remedy for the Board to remand the case to the
AOJ to provide the required notice, and for VA to follow
proper processes in subsequent actions.  Id.  The Court has
also indicated that the lack of full notice prior to the
initial decision may be corrected, and any error as to when
notice was provided may be harmless, if the veteran is
provided a meaningful opportunity to participate in the
processing of his claim.  See Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d
1328 (Fed. Cir. 2006).

During the pendency of this appeal, in March 2006, the Court
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
� 5103(a) and 38 C.F.R. � 3.159(b) apply to all five elements
of a service connection claim.  Those five elements include:
1) veteran status; 2) existence of a disability;
(3) a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability.  The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, 19 Vet. App. at 486.  Additionally, this
notice must include notice that a disability rating and an
effective date for the award of benefits will be assigned if
service connection is awarded.  Id.

In this case, the RO issued the veteran VCAA notices in
February 2003 and December 2004.  Those notice informed the
veteran of the type of information and evidence that was
needed to support his appeal for an earlier effective date
for service connection for PTSD.  VA has conducted all
appropriate development of relevant evidence, and has secured
all available pertinent evidence.  The veteran has had a
meaningful opportunity to participate in the processing of
his claim.  The Board finds that VA has adequately fulfilled
its duties under the VCAA.  To the extent that VA has failed
to fulfill any duty to notify and assist the veteran, the
Board finds such error to be harmless error that would not
reasonably affect the outcome of the veteran's claim.

Effective Date for Service Connection for PTSD

Treatment notes document that the veteran was seen at a VA
Medical Center (VAMC) on May 1, 1987, with complaints of a
several year history of flashbacks of his experiences during
service in Vietnam.  The practitioner who saw the veteran
listed a provisional diagnosis of PTSD, and referred the
veteran for a mental health consultation.  On May 11, 1987,
the RO received the veteran's claim for service connection
for PTSD.  On the claim form, the veteran did not indicate
whether he had received any treatment for PTSD.  Records in
the claims file indicate that the veteran was scheduled for a
VA psychiatric examination, but that he did not report for
the examination.  In a July 1987 rating decision, the RO
denied service connection for PTSD.

A rating decision becomes final when a claimant does not file
a notice of disagreement (NOD) within one year after a
decision is issued.  38 U.S.C.A. � 7105 (West 2002).  The
veteran did not file an NOD with the RO's July 1987 rating
decision denying service connection for PTSD.  Therefore,
that decision became final.

A final decision on a claim that has been denied shall be
reopened if new and material evidence with respect to that
claim is presented or secured.  38 U.S.C.A. �� 5108, 7104(b)
(West 2002).  On June 15, 1997, the veteran was admitted to a
VAMC for treatment of PTSD and polysubstance abuse.  On June
19, 1997, the VAMC stamped as received the veteran's request
to reopen a claim for service connection for PTSD.  In a
December 1997 rating decision, the RO denied the request to
reopen the claim.  In February 1998, the RO received the
veteran's notice of disagreement with the December 1997
rating decision.  In a May 1998 hearing officer decision, the
RO reopened the claim, based on the receipt of new and
material evidence, and granted service connection for PTSD.
The RO assigned an effective date for service connection of
June 15, 1997.

Unless otherwise provided, the effective date for an award of
compensation for service-connected disability shall be fixed
in accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor.  The
effective date will be the date of receipt of the claim, or
the date entitlement arose, whichever is later.  38 U.S.C.A.
� 5110(a); 38 C.F.R. � 3.400.  If the claim is received
within one year from the date of separation from service, the
date of separation will be the date of the award.
38 U.S.C.A. � 5110(b)(1).

When a claim for service connection is denied and the denial
becomes final, and that claim is later reopened and granted,
the effective date of the grant of service connection is the
date of the receipt of the application to reopen the claim,
or the date entitlement arose, whichever is later.  38 C.F.R.
�� 3.156(b), 3.400(q)(1)(ii) (2006).

The RO granted service connection for the veteran's PTSD
after reopening a finally denied claim due to the receipt of
new and material evidence.  The effective date of the grant
of service connection can be no earlier than the date VA
received the veteran's request to reopen the claim.  The RO
has not clearly articulated the reason it assigned an
effective date of June 15 instead of June 19.  Perhaps the RO
considered the veteran's admission into a VA medical facility
on June 15, 1997, as an informal claim under 38 C.F.R.
� 3.157.  However, the Board notes that the 1987 denial was
not on the basis that the veteran's PTSD was noncompensable
in degree, it was on the basis that there was no competent
evidence that the veteran suffered from PTSD at all.
Therefore, it would appear that the date of admission into a
VA facility would not be an informal claim under 38 C.F.R.
� 3.157 and that the effective date should have been June 19,
1997.  At any rate, regardless of the RO's action, the Board
is unable to find any basis for assigning an effective date
any earlier than the date assigned by the RO.

ORDER

Entitlement to an effective date prior to June 15, 1997, for
the grant of service connection for PTSD is not warranted.
The appeal is denied.

____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: KEITH W ALLEN

disposition: granted

text:
Citation Nr: 0707000
Decision Date: 03/09/07    Archive Date: 03/20/07

DOCKET NO.  05-02 814	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for post-traumatic stress
disorder (PTSD).

REPRESENTATION

Appellant represented by:	Military Order of the Purple
Heart of the U.S.A.

ATTORNEY FOR THE BOARD

T. L. Konya, Counsel

INTRODUCTION

The veteran had active service from March 1968 to December
1971.

This appeal to the Board of Veterans' Appeals (Board) arose
from a June 2003 decision by the RO in Winston-Salem, North
Carolina.

FINDING OF FACT

It is just as likely as not the veteran has PTSD from
stressors he experienced during combat in the Republic of
Vietnam.

CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, the veteran's
PTSD was incurred in service.  38 U.S.C.A. � 1110 (West 2002
& Supp. 2006); 38 C.F.R. �� 3.102, 3.303, 3.304(f) (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance.  38 U.S.C.A. �� 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R
�� 3.102, 3.156(a), 3.159, 3.326(a) (2006).

The Board is granting the veteran's PTSD claim, so any
concerns about whether there has been compliance with the
notice and duty to assist provisions of the VCAA are
inconsequential.  Cf. Wensch v. Principi, 15 Vet App 362
(2001); see 38 U.S.C.A. � 5103A(a)(2) (Secretary of VA not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim").  This is akin to the situation here inasmuch as the
mere fact that the Board is granting the claim, in full,
necessarily means no further notification or development of
the claim is needed since the requested benefit is being
granted, regardless.

Pertinent Laws and Regulations

Service Connection - In General

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

In order to establish service connection for the claimed
disorder, there must be:  (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability.  Hickson v. West, 12 Vet. App. 247, 253
(1999).

Service Connection - PTSD

To grant service connection for PTSD, in particular, there
are three requirements:  (1) a current diagnosis of the
condition in accordance with 38 C.F.R. � 4.125(a) (i.e., DSM-
IV); (2) medical evidence of a nexus between current
symptomatology and the claimed stressor in service; and (3)
credible supporting evidence that the claimed stressor in
service actually occurred.  38 C.F.R. � 3.304(f);
Moreau v. Brown, 9 Vet. App. 389 (1996).

In Zarycki v. Brown, 6 Vet. App. 91 (1993), the U.S. Court of
Appeals for Veterans Claims (Court) set forth the analytical
framework and line of reasoning for determining whether a
veteran was exposed to a recognizable stressor during service
- which, as mentioned, is an essential element in
solidifying a claim for service connection for PTSD.  In
Zarycki, it was noted that, under 38 U.S.C.A. 1154(b), 38
C.F.R. 3.304(d) and (f), and the applicable provisions
contained in VA Manual 21-1, the evidence necessary to
establish the incurrence of a recognizable stressor during
service to support a claim of service connection for PTSD
will vary depending on whether the veteran "engaged in combat
with the enemy."  See, too, Hayes v. Brown, 5 Vet. App. 60
(1993).  The determination as to whether the veteran "engaged
in combat with the enemy" is made, in part, by considering
military citations that expressly denote as much.  Doran v.
Brown, 6 Vet. App. 283, 289 (1994).  However, the Court has
held that the Board may not rely strictly on combat citations
or the veteran's military occupational specialty (MOS) to
determine if he engaged in combat; rather, other supportive
evidence of combat experience may also be accepted.
See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); West v.
Brown, 7 Vet. App. 70, 76 (1994).  If combat is affirmatively
indicated, then the veteran's lay testimony regarding claimed
combat-related stressors must be accepted as conclusive as to
their actual occurrence and no further development or
corroborative evidence will be required, provided that the
veteran's testimony is found to be "satisfactory," i.e.,
credible, and "consistent with the circumstances, conditions,
or hardships of such service."  Zarycki, 6 Vet. App. at 98.

If there is no combat experience, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor.  Doran, 6 Vet.
App. at 288-89 (1994).  The veteran's testimony, by itself,
cannot, as a matter of law, establish the occurrence of a
non-combat stressor.  Dizoglio, 9 Vet. App. at 166 (1996).
Further, an opinion by a mental health professional based on
a post-service examination of the veteran cannot be used to
establish the occurrence of a stressor.  Moreau v. Brown,
9 Vet. App. at 395-96 (1996); Cohen v. Brown, 10 Vet. App.
128 (1997).

Analysis

Concerning this specific claim at issue, there is of record a
medical diagnosis of PTSD and this condition has been
etiologically linked to the veteran's military service.  The
post-service medical evidence reveals that he was initially
diagnosed with PTSD in 2002.  A June 2003 statement from W.
R. Taylor, Jr., MSW, at the Greensboro Vet Center, indicated
the veteran had been seen on five occasions between September
2002 and March 2003.  Throughout the course of his treatment
at the Vet Center, he reported service in Vietnam and his MOS
was Special Radio Operator.  His area of operation included
Phu Bia, Hill 327, LZ Baldy, and Monkey Mountain.  He
reported coming under sniper fire on numerous occasions.  The
social worker commented that a number of the symptoms
reported by the veteran were consistent with his diagnosis of
PTSD.  Those symptoms included anger, irritability, problems
with authority, sleeplessness, and hyper-activity.

In a subsequent February 2004 VA consultation note, the
veteran again reported a history of serving in Vietnam -
with a tour of duty in DaNang specifically.  He stated that
while in DaNang he witnessed Army trucks run over Vietnamese
children and Vietnamese men dropped from helicopters.  He
experienced feelings of horror and helplessness.  He also
reported that when he first landed in Vietnam, his plane came
under attack by mortars and he was sure he was going to die.
The Axis I diagnosis was PTSD, chronic, moderate.

In December 2004 the veteran presented for a VA PTSD
examination.  The examiner noted a review of the veteran's
claims file.  The veteran reiterated his subjective
complaints, as well as his stressors, and he added that his
MOS required him to deliver supplies to units that were out
in the field.  He recalled many times when he was shot at
while delivering supplies.  He reported frequent nightmares
of the various stressors experienced in Vietnam.  The Axis I
diagnosis was PTSD.

As mentioned, the veteran has the requisite PTSD diagnosis -
indeed several, and the necessary linkage to his military
service and, in particular, to several incidents that
purportedly occurred while he was stationed in Vietnam.

So the determinative issue is whether there is credible
supporting evidence that the veteran's claimed stressors in
service actually occurred - keeping in mind that this burden
of proof in establishing the occurrence of these purported
stressors is considerably less if, as here, they involve
combat.

As indicated by his military personnel records, the veteran
served in Vietnam from November 7, 1970 to April 18, 1971.
He received the National Defense Service Medal, Vietnamese
Service Medal with one star, and Vietnamese Campaign Medal,
among others.  He was a radio operator.  More importantly,
his personnel papers confirm he participated in combat
operations in Vietnam, so he is considered a combat veteran.
Consequently, his lay testimony - alone, may be sufficient
to establish the occurrence of his claimed combat stressors,
provided they are consistent with the circumstances and
conditions of his service.

The Board finds that the veteran has reported numerous
stressors that are consistent with the circumstances and
conditions of his service in Vietnam.  Throughout the
pendency of his appeal, he has consistently noted his
stressors to be the following:  during his initial arrival in
Vietnam his plane came under attack by mortars; he witnessed
an Army convoy run over several Vietnamese woman, men and
children; he was exposed to a fellow Marine who "lost it"
and began shooting at his platoon; a Marine he had befriended
(R.H.) died while serving with him in Vietnam and he was
responsible for surveying his gear and gathering his personal
belongings; on one particular occasion the VietCong tried to
infiltrate the base he was stationed at and eventually 10
helicopter guns appeared and were able to ward off the VC; he
frequently witnessed Vietnamese people dangled from
helicopters and then dropped; and he recalled an incident
whereby he was on his way to pick up supplies with a fellow
soldier who was Japanese but he was stopped by the Army
at gunpoint because the Army assumed the other soldier was
Vietnamese.  These stressors are deemed credible and,
inasmuch as they are entirely consistent with the
circumstances of the veteran's service, are deemed confirmed.

In an attempt to verify the veteran's alleged stressors, the
RO submitted a request to the Commandant of the Marine Corps
and the Marine Corps Historical Center.  In a subsequent
response from the Marine Corps Historical Center it was
verified that R.H. was killed in action on January 21, 1971,
when a helicopter in which he was a passenger crashed and
burned.  It was also verified the veteran and R.H. were
assigned to the same Unit during the same time.  The response
also provided the RO with numerous declassified documents,
however, no additional stressors could be verified via those
documents.  Nevertheless, all things considered, and
resolving all reasonable doubt in the veteran's favor,
because the Board has found that he has combat status and has
claimed combat-related stressors, specific credible
supporting evidence of those stressors is not required.
Moreover, as explained, he has recounted stressors that are
entirely consistent with the circumstances of his service.

The Court has issued several precedent decisions that have
expanded the understanding of what constitutes credible
supporting evidence of a claimed stressor.  The Court has
held that there is no need to verify every detail of a
claimed stressor and that evidence of a stressor affecting a
veteran's unit in service implied the veteran's involvement
in those events.  Suozzi v. Brown, 10 Vet. App. 307,
310-311 (1997).  The Court has since clarified that it is
error for the Board to require confirmation of a veteran's
personal participation in stressors affecting his unit.
Sizemore v. Principi, 18 Vet. App. 264, 270 (2004); Pentacost
v. Principi, 16 Vet. App. 124, 128 (Vet. App. May 24, 2002).
In Sizemore the Court held that a veteran could be considered
to have engaged in combat even though his unit did not
receive incoming enemy fire.

So all three of the requirements for granting service
connection for PTSD are met, especially if all reasonable
doubt is resolved in the veteran's favor.
See Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); Alemany
v. Brown, 9 Vet. App. 518, 519 (1996).

ORDER

The claim for service connection for PTSD is granted.

____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: P M DILORENZO

condition: back

condition: radiculopathy

condition: knee

text:
Citation Nr: 0708000
Decision Date: 03/16/07    Archive Date: 04/09/07

DOCKET NO.  03-07 507	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada

THE ISSUES

1.  Entitlement to an initial disability evaluation in excess
of 20 percent for degenerative disc disease and traumatic
arthritis of the lumbar spine.

2.  Entitlement to a compensable rating for chronic left knee
strain with calcific tendonitis of the left patella tendon
for the period prior to June 12, 2002.

3.  Entitlement to a compensable rating for chronic right
knee strain for the period prior to June 12, 2002.

4.  Entitlement to a disability rating in excess of 10
percent for bilateral degenerative joint disease of the knees
for the period from June 12, 2002, forward.

5.  Entitlement to an initial compensable disability rating
for the residuals of a left foot sesamoid fracture.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M.A. Herman, Counsel

INTRODUCTION

The veteran had active military service from January 1998 to
January 2002.

This case comes before the Board of Veterans' Appeals (Board)
on appeal of a February 2002 rating action of the Department
of Veterans' Affairs (VA) Regional Office (RO) in Anchorage,
Alaska, that assigned a 20 percent disability rating for
degenerative disc disease and traumatic arthritis of the
lumbar spine and noncompensable ratings for chronic left knee
strain with calcific tendonitis of the left patella tendon,
chronic right knee strain, and the residuals of a left foot
sesamoid fracture, after granting service connection for the
same.

By a rating action dated in February 2006, the noncompensable
ratings assigned for chronic left knee strain with calcific
tendonitis of the left patella tendon and chronic right knee
strain was terminated, and a 10 percent disability rating was
granted for bilateral degenerative joint disease of the
knees, effective from June 12, 2002.  Jurisdiction over the
matter was transferred to the Reno RO during the pendency of
the appeal.

In October 2004, the Board remanded the matter to the RO via
the Appeals Management Center (AMC) for the purpose of
obtaining additional evidence.  The matter was returned to
the Board for final appellate consideration.

FINDINGS OF FACT

1.  There is no evidence that the veteran's low back
disability results in severe loss of range of motion of the
lumbar spine; forward flexion of the thoracolumbar spine
limited to 30 degrees or less; favorable ankylosis of the
entire thoracolumbar spine; severe lumbosacral strain, with
listing of the whole spine to the opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in a
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint
space, or abnormal mobility on forced motion; or,
intervertebral disc syndrome.

2.  Effective from April 9, 2003, the veteran's lumbar spine
disability results in mild, incomplete paralysis of the right
lateral femoral cutaneous nerve.

3.  For the period prior to June 12, 2002, there was no loss
of range of motion of the right or left knee, subluxation or
instability of the right or left knee, or, X-ray evidence of
arthritis of either knee.

4.  For the period from June 12, 2002, forward, the veteran's
right knee and left knee disabilities have been manifested by
x-ray evidence of arthritis; however, current range of motion
of the knees is from 0 to 140 degrees, bilaterally, and there
are no objective findings of subluxation or instability of
the right knee.

5.  Effective from November 22, 2005, the veteran has slight
subluxation/instability of the left knee.

6.  Other than some loss of extension of the second toe, the
veteran currently has no residuals of a left foot sesamoid
fracture.

CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess
of 20 percent for degenerative disc disease and traumatic
arthritis of the lumbar spine have not been demonstrated.  38
U.S.C.A. �� 1155, 5107(b) (West 2002); 38 C.F.R. �� 3.102,
3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5292, 5293, 5294, 5295, (2002), Diagnostic
Codes 5292, 5293, 5294, 5295 (2003), Diagnostic Codes 5236,
5237, 5242, 5243 (2006).

2.  The criteria for a separate noncompensable disability
rating for mild, incomplete paralysis of the right lateral
femoral cutaneous nerve have been met, effective from April
9, 2003.  38 U.S.C.A. �� 1155, 5107(b) (West 2002); 38 C.F.R.
�� 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a,
4.123, 4.124, 4.124a, Diagnostic Codes 5293 (2002),
Diagnostic Codes 5243, 8529 (2006).

3.  The criteria for a compensable disability rating for
chronic left knee strain with calcific tendonitis of the left
patella tendon have not been met for the period prior to June
12, 2002.  38 U.S.C.A. �� 1155, 5107(b) (West 2002); C.F.R.
�� 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a,
Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2006).

4.  The criteria for a compensable disability rating for
chronic right knee strain have not been met for the period
prior to June 12, 2002.  38 U.S.C.A. �� 1155, 5107(b) (West
2002); C.F.R. �� 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261
(2006).

5.  The criteria for a disability rating in excess of 10
percent for bilateral degenerative joint disease of the knees
have not been met for the period from June 12, 2002, forward.
38 U.S.C.A. �� 1155, 5107(b) (West 2002); C.F.R. �� 3.102,
4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Codes 5003, 5010, 5257, 5260, 5261 (2006).

6.  The criteria for a separate 10 percent disability rating
for subluxation/instability of the left knee have been met,
effective from November 22, 2005.  38 U.S.C.A. �� 1155,
5107(b) (West 2002); C.F.R. �� 3.102, 4.1, 4.2, 4.7, 4.71a,
Diagnostic Code 5257 (2006).

7.  The criteria for a compensable disability rating for the
residuals of a left foot sesamoid fracture have not been met.
38 U.S.C.A. �� 1155, 5107(b) (West 2002); C.F.R. �� 3.102,
4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5284 (2006).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As required by 38 U.S.C.A. � 5103(a), prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision,
the claimant must be provided notice consistent with 38
U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).  This notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should give us everything you've got pertaining to
your claims.

In the instant case, the veteran received notification
subsequent to the initial unfavorable agency decision in
February 2002.  The RO's December 2004 notice letter informed
the veteran that he could provide evidence to support his
claims or location of such evidence and requested that he
provide any evidence in his possession.  The notice letter
notified the veteran that VA would obtain all relevant
evidence in the custody of a federal department or agency.
He was advised that it was his responsibility to either send
records pertinent to his claim, or to provide a properly
executed release so that VA could request the records for
him.  The veteran was also asked to advise VA if there were
any other information or evidence he considered relevant to
this claim so that VA could help by getting that evidence.
It is the Board's conclusion that the veteran has been
provided with every opportunity to submit evidence and
argument in support of his claim, and to respond to VA
notices.  The duty to notify the veteran was satisfied under
the circumstances of this case.  38 U.S.C.A. � 5103.

During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the notice requirements of 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b) apply to all five elements of a
service connection claim.  Those five elements include: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.  The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. �
5103(a) and 38 C.F.R. � 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Id.   This notice must also include the information pertinent
to the relevant disability rating and an effective date for
the award of benefits that would be assigned if service
connection is awarded.  Id.

In the present appeal, the veteran was provided with notice
of what type of information and evidence was needed to
substantiate his claims.  While the veteran was never
provided a VCAA letter outlining the criteria for
establishing increased ratings and effective dates, the
statutory scheme contemplates that once a decision awarding
service connection, a disability rating, and an effective
date has been made, section 5103(a) notice has served its
purpose.  Id.  Further, as the veteran was granted service
connection for the claimed disabilities and assigned
disability evaluations and initial effective dates, the
Secretary had no obligation to provide further notice under
the statute.  Dingess/Hartman v. Nicholson.  Moreover, the
veteran was provided notice of the regulations for evaluating
his claimed disabilities in the January 2003 statement of the
case and a supplemental statement of the case dated in
February 2006 and he has not otherwise argued failure of
notice.  As such, any defect with respect to the content of
the notice requirement was non-prejudicial.   Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).

Recognition is given to the fact that full VCAA notification
was not furnished to the veteran prior to the initial
adjudication of the claim.  However, the Board finds that any
defect with respect to the timing of the VCAA notice
requirement was harmless error.  Mayfield v. Nicholson, 19
Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328
(Fed. Cir. 2006).  Although full VCCA-complying notice was
not provided prior to the initial adjudication of the claim
the veteran had ample opportunity to respond, supplement the
record, and participate in the adjudicatory process after the
notice was given, and the case was then readjudicated by the
RO.

VA must also make reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate the claims for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159 (2006).

Service medical records have been obtained.  Records from the
Reno VA Medical Center (VAMC) are also of record.  The
veteran has not identified any other post-service medical
care providers. The veteran was afforded VA examinations in
October 2001 and November 2005.  In light of the foregoing,
the Board is satisfied that all relevant facts have been
adequately developed to the extent possible; no further
assistance to the veteran in developing the facts pertinent
to the issues on appeal is required to comply with the duty
to assist.  38 U.S.C.A. �� 5103 and 5103A; 38 C.F.R.
� 3.159.

Increased Ratings

Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. � 1155 (West 2002); 38
C.F.R., Part 4 (2006).  Separate diagnostic codes identify
the various disabilities.  38 C.F.R. � 4.1 requires that each
disability be viewed in relation to its history and that
there be emphasis upon the limitation of activity imposed by
the disabling condition.  38 C.F.R. � 4.2 requires that
medical reports be interpreted in light of the whole recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work.
38 C.F.R. � 4.7 provides that, where there is a question as
to which of two disability evaluations shall be applied, the
higher evaluation is to be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating is to be assigned.

The claims on appeal originated from the RO decision that
granted service connection for those disabilities.  The
claims therefore stem from the initial rating assigned to
those disabilities.  At the time of an initial rating,
separate, or staged, ratings can be assigned for separate
periods of time based on the facts found.  Fenderson v. West,
12 Vet. App. 119 (1999).

An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment.  38 C.F.R. � 4.10.

VA must consider "functional loss" of a musculoskeletal
disability separately from consideration under the diagnostic
codes; "functional loss" may occur as a result of weakness or
pain on motion.  38 C.F.R. �� 4.40, 4.45, 4.59; DeLuca v.
Brown, 8 Vet. App. 202 (1995).  VA must consider any part of
the musculoskeletal system that becomes painful on use to be
"seriously disabled." 38 C.F.R. � 4.40.

When a new statute is enacted or a new regulation is issued
while a claim is pending before VA, VA must first determine
whether the statute or regulation identifies the types of
claims to which it applies.  If the statute or regulation is
silent, VA must determine whether applying the new provision
to claims that were pending when it took effect would produce
genuinely retroactive effects.  If applying the new provision
would produce such retroactive effects, VA ordinarily should
not apply the new provision to the claim.  If applying the
new provision would not produce retroactive effects, VA
ordinarily must apply the new provision.  Statutes and
regulations are presumed not to apply in any manner that
would produce genuinely retroactive effects, unless the
statute or regulation itself provides for such retroactivity.
See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also Landgraf v.
USI Film Products, 511 U.S. 244 (1994); Regions Hospital v.
Shalala, 522 U.S. 448 (1998); Kuzma v. Principi, 341 F.3d
1327 (Fed. Cir. 2003).

Lumbar spine

Under 38 C.F.R. � 4.71a, and prior to September 26, 2003,
Diagnostic Code 5292, which pertained to limitation of motion
of the lumber spine, the veteran was rated using the
following criteria:

Severe...................................
.......... ...........40
Moderate.................................
.......... .........20
Slight...................................
.......... ............10

Under 38 C.F.R. � 4.71a, and prior to September 26, 2003,
Diagnostic Code 5294, which pertained to sacroiliac injury
and weakness, and Diagnostic Code 5295, which pertained to
lumbosacral strain, evaluations were assigned as follows:

Severe; with listing of the whole spine
to the opposite side, positive
Goldwaithe's sign, marked limitation of
forward bending in the standing position,
loss of lateral motion with osteo-
arthritic changes, or narrowing or
irregularity of the joint space, or some
of the above with abnormal mobility on
forced motion. ................... 40

With muscle spasm on extreme forward
bending,
loss of lateral spine motion, unilateral,
in standing position ......................................................
20

Under the rating criteria in effect prior to September 23,
2002, intervertebral disc syndrome was evaluated as follows:

Pronounced; with persistent symptoms
compatible with sciatic neuropathy with
characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site
of diseased disc, little intermittent
relief.................................60

Severe; recurring attacks, with
intermittent relief .......40

Moderate; recurring
attacks..................................
....... 20

Mild.....................................
........................................
10

The regulations regarding intervertebral disc syndrome were
revised effective September 23, 2002.  Under the revised
regulations, intervertebral disc syndrome was evaluated as
follows:

Evaluate intervertebral disc syndrome
(preoperatively or postoperatively)
either on the total duration of
incapacitating episodes over the past 12
months or by combining under Sec.  4.25
separate evaluations of its chronic
orthopedic and neurologic manifestations
along with evaluations for all other
disabilities, whichever method results in
the higher evaluation.

With incapacitating episodes having a
total duration of at least six weeks
during the past 12 months.............60

With incapacitating episodes having a
total duration of at least four weeks but
less than six weeks during the past 12
months...................................
.......................40

With incapacitating episodes having a
total duration of at least two weeks but
less than four weeks during the past 12
months...................................
.......................20

With incapacitating episodes having a
total duration of at least one week but
less than two weeks during the past 12
months...................................
.......................10

Note (1): For purposes of evaluations
under 5293, an incapacitating episode is
a period of acute signs and symptoms due
to intervertebral disc syndrome that
requires bed rest prescribed by a
physician and treatment by a physician.
"Chronic orthopedic and neurologic
manifestations" means orthopedic and
neurologic signs and symptoms resulting
from intervertebral disc syndrome that
are present constantly, or nearly so.

Note (2): When evaluating on the basis of
chronic manifestations, evaluate
orthopedic disabilities using evaluation
criteria for the most appropriate
orthopedic diagnostic code or codes.
Evaluate neurologic disabilities
separately using evaluation criteria for
the most appropriate neurologic
diagnostic code or codes.

Note (3): If intervertebral disc syndrome
is present in more than one spinal
segment, provided that the effects in
each spinal segment are clearly distinct,
evaluate each segment on the basis of
chronic orthopedic and neurologic
manifestations or incapacitating
episodes, whichever method results in a
higher evaluation for that segment.

The regulations regarding diseases and injuries to the spine,
to include intervertebral disc syndrome, were again revised
effective September 26, 2003.  Under these revised
regulations, the back disability is evaluated under the
formula for rating intervertebral disc syndrome based on
incapacitating episodes, diseases and injuries to the spine
are to be evaluated under diagnostic codes 5235 to 5243 as
follows:

With or without symptoms such as pain
(whether or not it radiates), stiffness,
or aching in the area of the spine
affected by residuals of injury or
disease
Unfavorable ankylosis of the entire
spine.............100

Unfavorable ankylosis of the entire
thoracolumbar
spine  .....................................................50

Unfavorable ankylosis of the entire
cervical spine; or, forward flexion of
the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the
entire thoracolumbar
spine.....................................40

Forward flexion of the thoracolumbar
spine greater than 30 degrees but not
greater than 60 degrees; or, forward
flexion of the cervical spine greater
than 15 degrees but not greater than 30
degrees; or, the combined range of
motion of the thoracolumbar spine not
greater than 120 degrees; or, the
combined range of motion of the cervical
spine not greater than 170 degrees; or,
muscle spasm or guarding severe enough
to result in an abnormal gait or
abnormal spinal contour such as
scoliosis, reversed lordosis, or
abnormal
kyphosis....................................................20

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): (See also Plate V.) 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 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.

Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating
Episodes

With incapacitating episodes having a
total duration of at least six weeks
during the past 12 months.............60

With incapacitating episodes having a
total duration of at least four weeks but
less than six weeks during the past 12
months...................................
.......................40

With incapacitating episodes having a
total duration of at least two weeks but
less than four weeks during the past 12
months...................................
.......................20

As noted above, the criteria for rating intervertebral disc
syndrome under Diagnostic Code 5293 that became effective on
September 23, 2002, contained a note defining incapacitating
episodes and chronic orthopedic and neurologic
manifestations.  The Federal Register version setting forth
the final rule indicates that the three notes following the
version of Diagnostic Code 5293 that became effective on
September 23, 2002, were deleted when intervertebral disc
syndrome was reclassified as Diagnostic Code 5243 in the
criteria that became effective on September 26, 2003.  This
was apparently inadvertent and has now been corrected by 69
Fed. Reg. 32,449, 32,450 (June 10, 2004), a final correction
that was made effective September 26, 2003.

On review of the evidence of record, the Board finds that the
veteran's low back disability is appropriately evaluated as
20 percent disabling.  The evidence does not show severe
limitation of motion of the lumbar spine.  There is also no
evidence that the veteran's lumbar spine disability has
resulted in limitation of forward flexion of the
thoracolumbar spine to 30 degrees or less or favorable
ankylosis of the entire thoracolumbar spine.  At his November
2005 VA examination, the veteran demonstrated forward flexion
to 80 degrees, backward extension to 30 degrees, and lateral
flexion to 30 degrees, bilaterally, and rotation to 45
degrees, bilaterally.  Repetition of flexion and extension
resulted in low back pain and spasm, which caused a decrease
of forward flexion to 60 degrees.  The October 2001 VA
examination described the veteran as having a full range of
motion of the lumbar spine with moderate low back pain.  VA
treatment records do not conflict with these results.

Further, the Board finds that the medical evidence does not
reflect objective evidence of pain, instability, or weakness
greater than that contemplated by the 20 percent rating.  The
Board recognizes that the veteran complains of lack of
endurance and an inability to stand or walk for prolonged
periods of time.  However, the veteran denied using a crutch,
cane, or back brace.  Moreover, when he was examined in
November 2005, the question of whether the veteran would
experience any additional functional loss was addressed.  In
this regard, the examiner specifically noted that repetitive
flexion and extension caused low back pain and spasm, which
reduced the veteran's forward flexion to 60 degrees.
Considering the veteran's complaints and the aforementioned
additional loss of motion, the Board finds that application
of 38 C.F.R. �� 4.40, 4.45, and 4.59 does not provide a basis
for a rating higher than 20 percent.

There was also no evidence of listing of the whole spine or a
positive Goldthwaite's sign, which are necessary findings to
achieve a 40 percent rating under Diagnostic Code 5295.  On
the contrary, the November 2005 examination indicated that
the veteran arrived to the examination with a steady gait
with heel to toe strike.   He did not exhibit any signs of
discomfort.  Muscle spasm was only demonstrated after
repeated flexion and extension.

Further, consideration has been given as to whether a higher
disability evaluation could be assigned under Diagnostic
Codes 5293 or 5243, intervertebral disc syndrome.  The Board
acknowledges that X-rays show degenerative disc disease at
multiple levels of the lower lumbar spine, and that the
report of a June 2002 MRI revealed degenerative disc disease
beginning at L2-3 and continuing to L4-5 and moderate disc
bulging at L5-S1 with only minimal lateral components.
Nevertheless, despite these findings, there is no evidence to
support a diagnosis of intervertebral disc syndrome.  The
November 2005 examination indicated that deep tendon reflexes
were intact throughout the lower extremities.  The veteran
was capable of tiptoe and heel walk.  The musculature of the
lower extremities was good.  There was some limitation on
straight leg raising.  The only neurological symptom
experienced by the veteran pertained to numbness on the right
thigh, which is discussed below.  The neurological component
of the November 2005 examination was essentially normal.  A
diagnosis of intervertebral disc syndrome was not rendered.
VA treatment notes dated in April 2003 and December 2003
support such a finding.  Those notes indicate that the
veteran had normal neurological examinations.  A disability
evaluation under the criteria for intervertebral disc
syndrome would therefore be inappropriate.

Nevertheless, even if a diagnosis of intervertebral disc
syndrome was rendered, there is no evidence that the veteran
experiences severe recurring attacks of intervertebral disc
syndrome with intermittent relief, or that he experiences any
incapacitating episodes resulting from intervertebral disc
syndrome of at least four weeks during the past year.  See 38
C.F.R. � 4.71a, Diagnostic Code 5293 (2002), Diagnostic Code
5293 (2003), Diagnostic Code 5243 (2006).  The record is
simply absent such findings.  Indeed, when he was examined in
November 2005, the veteran reported that he had not missed
any days of work due to his back disability.

Neuritis, cranial or peripheral, characterized by loss of
reflexes, muscle atrophy, sensory disturbances, and constant
pain, at times excruciating, is to be rated on the scale
provided for injury of the nerve involved, with a maximum
equal to severe, incomplete paralysis.  38 C.F.R. � 4.123.
The maximum rating which may be assigned for neuritis not
characterized by organic changes as noted above will be that
for moderate, or with sciatic nerve involvement, for
moderately severe, incomplete paralysis.  Id.  Neuralgia,
cranial or peripheral, characterized usually by a dull and
intermittent pain, of typical distribution so as to identify
the nerve, is to be rated on the same scale, with a maximum
equal to moderate, incomplete paralysis.  38 C.F.R. � 4.124.

The aforementioned and discussed November 2005 VA examination
indicates that the veteran experiences some neurological
manifestations, which may be associated with his low back
disability.  The examiner described the veteran as having
numbness on the right thigh along the lateral femoral
cutaneous nerve distribution.  Associated VA treatment
records suggest that this problem is the result of his
degenerative disc disease.  Accordingly, the Board will
evaluate the veteran's chronic neurological manifestations
pursuant to Diagnostic Code 8529, External cutaneous nerve.

38 C.F.R. � 4.124a, Diagnostic Code 8529 pertain to
neurologic impairment of the external cutaneous nerve of the
thigh.  Where paralysis is severe to complete, a (maximum) 10
percent rating is warranted.  Where paralysis is mild or
moderate, a noncompensable rating is to be assigned.

On VA examination in October 2001, the veteran denied
radiation of back pain into the lower extremities and
neurological evaluation was completely normal.  On evaluation
in June 2002, neurologic examination was again completely
normal and the veteran denied neurologic complaints.  On
April 9, 2003, the veteran complained of pain in his lower
back and down his right leg.  Strength was 5/5 and there was
no decrease in sensation in the right leg.  Reflexes were 2+.
Neurologic examination was unremarkable on April 14 and
December 19, 2003.  As noted above, the November 2005 VA
examination described the veteran as having subjective
complaints related to the right lateral femoral cutaneous
nerve distribution.  The examiner described there being no
"marked objective evidence" of any disability.  No other
neurological complications have been identified.  The Board
finds that evidence therefore supports the award of a
separate rating for mild paralysis of the external cutaneous
nerve; and, that a noncompensable evaluation, but no greater,
is warranted under Diagnostic Code 8529, effective from April
9, 2003.  None of the above objective findings, which are
essentially normal, amount to severe or complete paralysis of
the external cutaneous nerve.

To the extent that the claim has been denied, the
preponderance of the evidence is against the claim.  Thus,
the benefit-of-the doubt doctrine does not apply, and the
claim must be denied.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Bilateral knee disorder

Service connection for chronic left knee strain with calcific
tendonitis of the left patella tendon and chronic right knee
strain was granted in February 2002.  Noncompensable ratings
were assigned for each knee under Diagnostic Code 5024,
Tenosynovitis, effective from January 2002 (date of service
discharge).  By a rating action dated in February 2006, the
noncompensable ratings assigned for chronic left knee strain
with calcific tendonitis of the left patella tendon and
chronic right knee strain were terminated.  In their place,
and effective from June 12, 2002, a 10 percent disability
rating was assigned for bilateral degenerative joint disease
of the knees under Diagnostic Code 5010-5003, Arthritis due
to trauma.  The 10 percent rating was assigned on the basis
of x-ray evidence of involvement of two or more major joints.

Traumatic arthritis is rated based on limitation of motion of
the joint affected as arthritis, degenerative.  See 38 C.F.R.
� 5010 (2006).  The schedular criteria for degenerative
arthritis established by x-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by limitation of motion.  Further, in the absence of
limitation of motion, a 10 percent rating is assignable with
X-ray evidence of involvement of two or more major joints.
38 C.F.R. 4.71, Diagnostic Code 5003.

X-rays taken at the October 2001 VA examination showed only
an osteocartilaginous element measuring 5 mm by 15 mm, which
was located in the inferior aspect of the left patellar
tendon.  It was faintly calcified.  The examiner indicated
that it was probably the sequela of Osgood-Schlatter's
disease.  The bones and soft tissue were otherwise normal in
both knees.  There was no other evidence of deformity,
inflammation, or destructive changes.  In other words, at the
time he was examined in October 2001, there was no X-ray
evidence of arthritis in either knee.  The first radiological
report showing arthritis in the knees is not until
June 12, 2002.  Therefore, for the period prior to June 12,
2002, Board finds that the assignment of a 10 percent rating
under Diagnostic Code 5003-5010 (X-ray evidence of
involvement of two or more major joints) for the veteran's
bilateral knee disability would be inappropriate.

As noted above, the veteran's right and left knee
disabilities were rated under Diagnostic Code 5024 prior to
June 12, 2002.  Diagnostic Code 5024 evaluates disabilities
characterized by tenosynovitis.  A note under Diagnostic Code
5024 specifies that the diseases evaluated under Diagnostic
Codes 5013 through 5024 (except gout) will be rated on
limitation of motion of the affected parts, as arthritis,
degenerative.  38 C.F.R. � 4.71a, Diagnostic Code 5024.

When he was examined in October 2001, the veteran had a
"full pain-free range of motion of the knees with full
normal extension."  Normal range of motion for the leg is
zero degrees of extension and 140 degrees of flexion. 38
C.F.R. � 4.71, Plate II (2006).  He could perform
"effortless" deep knee bends to full squat and return to
standing without assistance.  He could heel and toe walk
normally.  The diagnosis was "bilateral knee strain, in
quiescent state."  There are no post-service medical records
dated prior to June 12, 2002 that contradict these findings.

Accordingly, the Board finds that the veteran is not entitled
to a higher (10 percent) disability rating for either knee
under Diagnostic Code 5260 since leg flexion has not been
shown to be limited to 45 degrees or less.  Similarly, the
veteran is not entitled to a 10 percent evaluation under
Diagnostic Code 5261 since leg extension has not been shown
to be limited to 10 degrees or more.  38 C.F.R. Part 4,
Diagnostic Codes 5260, 5261.  Further, as the examiner
indicated that the veteran was "pain-free" when executing
his ranges of motion, and his knee disability was described
as being in a "quiescent state," application of 38 C.F.R.
�� 4.40, 4.45, and 4.59 would be inappropriate.

Consideration has been given to VAOPGCPREC 9-2004 wherein the
VA Office of General Counsel (OGC) concluded that a veteran
can receive separate ratings under Diagnostic Code 5260 (leg,
limitation of flexion), and Diagnostic Code 5261 (leg,
limitation of extension) for disability of the same joint.
However, as discussed above, the October 2001 examination
reflects that bilateral knee flexion and extension were full.
A separate compensable evaluations for loss of flexion and
extension is not warranted.

Under Diagnostic Code 5257, a 10 percent disability rating is
warranted for slight recurrent subluxation or lateral
instability; a 20 percent disability rating is warranted for
moderate recurrent subluxation or lateral instability; and a
30 percent disability rating is assigned for severe recurrent
subluxation or lateral instability.  38 C.F.R. � 4.71a,
Diagnostic Code 5257.  Subluxation of the patella is
"incomplete or partial dislocation of the knee cap." Rykhus
v. Brown, 6 Vet. App. 354, 358 (1993) (citing Dorland's
Illustrated Medical Dictionary at 1241, 1599 (27th edition
1988)).  A review of the veteran's bilateral knee
symptomatology prior to June 12, 2002, militates against the
assignment of a 10 percent evaluation under Diagnostic Code
5257, as slight recurrent subluxation and lateral instability
has not been shown.  Indeed, when he was examined in October
2001, it was noted that all joints were stable.  There is
also no contemporaneous evidence showing subluxation or
lateral instability.

In sum, the Board concludes that the evidence does not
support the assignment of compensable evaluations for the
veteran's chronic left knee strain with calcific tendonitis
of the left patella tendon or chronic right knee strain for
the period prior to June 12, 2002.  Further, for the reasons
set forth below, there is no basis for assigning a higher (20
percent) rating for bilateral degenerative joint disease of
the knees or separate compensable ratings for left knee and
right knee disability for the period from June 12, 2002,
forward.

The report of a June 12, 2002, X-ray revealed minimal
degenerative joint disease in both knees.  As discussed
above, in the absence of limitation of motion of the involved
joint, a 10 percent rating is assignable with X-ray evidence
of involvement of two or more major joints.  A 20 percent
rating is assigned with X-ray evidence of involvement of two
or more major joints with occasional incapacitating
exacerbations.  38 C.F.R. 4.71, Diagnostic Code 5003.  The
report of the November 2005 VA examination made no findings
of occasional incapacitating exacerbations of the veteran's
degenerative joint disease of the knees.  VA outpatient
treatment records are similarly silent.  As such, the
assignment of a 20 percent rating under Diagnostic Code 5010-
5003 for the veteran's degenerative joint disease of the
knees would be inappropriate.

Consideration has also been given as to whether separate
compensable ratings may be assigned to the veteran's right
and left knee disability.  The evidence of record does not
support such a proposition.  When he was examined in November
2005, flexion and extension of both knees was described as
"full."  Range of motion of both knees was from zero to 140
degrees.  Repetition did not change that.  He could tiptoe
and heel walk.  He also did repeated squats, which did not
cause as much discomfort in the knees as it did in his back.
There was some clicking of both patellae after repetition.

In view of the foregoing evidence, to include a review of VA
treatment records, the Board finds that the veteran is not
entitled to a 10 percent disability rating under Diagnostic
Code 5260 since leg flexion has not been shown to be limited
to 45 degrees or less.  Similarly, the veteran is not
entitled to a 10 percent evaluation under Diagnostic Code
5261 since leg extension has not been shown to be limited to
10 degrees or more.  38 C.F.R. Part 4, Diagnostic Codes 5260,
5261.  It would also be inappropriate to assign separate
compensable ratings under Diagnostic Code 5010-5003 for
limitation of motion of a specific joint that is
noncompensable under the appropriate diagnostic codes.  The
November 2005 examination report clearly indicated that the
veteran had a normal range of motion in each knee.  Again,
the veteran has not met the criteria for the assignment of a
noncompensable rating for either knee, i.e., flexion limited
to 60 degrees or extension limited to 5 degrees.

The Board also notes that the veteran has reported pain on
use and lack of endurance of his knees.  He says the pain is
worse when he gets up in the morning.  These complaints have
been duly considered as a basis for an increased evaluation.
The November 2005 VA examination took the veteran's
complaints of pain into account when assessing his range of
motion.  The examiner specifically indicated range of motion
was not adversely affected by repetitive motion.  There was
also no indication that repetitive motion of the knees or
flare-ups of pain would result in weakness, fatigability,
incoordination, or lack of endurance.  In other words,
application of 38 C.F.R. �� 4.40, 4.45, and 4.59 do not
provide a basis for the assignment of separate compensable
ratings under Diagnostic Codes 5010-5003, 5260, or 5261.
Further, as range of motion was full in each knee, there is
no basis to assign separate ratings for loss of flexion and
extension.  See VAOPGCPREC 9-2004.

Recognition is given to the fact that the OGC has also
determined that a claimant who has arthritis and instability
of the knee may be rated separately under Diagnostic Codes
5003 and 5257.  See VAOPGCPREC 23-97 (July 1, 1997).  The OGC
concluded that for a knee disability rated under Diagnostic
Code 5257 to warrant a separate rating for arthritis based on
x-ray findings and limitation of motion, limitation of motion
under Diagnostic Codes 5260 or 5261 need not be compensable
but must at least meet the criteria for a zero-percent
rating.  A separate rating for arthritis could also be based
on x-ray findings and painful motion under 38 C.F.R. � 4.59.
See VAOPGCPREC 9-98 (August 14, 1998).

There was no laxity in the joints on evaluation on June 12,
2002.  On April 2, 2004, there were no signs of buckling of
the knees.  However, the report of the VA examination
conducted on November 22, 2005 indicated that the knees
showed loose patellae on palpation.  Lachman and McMurray
tests were negative except for slight laxity of the anterior
cruciate ligament on the left.  Thus, the evidence supports
the assignment of a separate 10 percent rating for the left
knee under Diagnostic Code 5257, effective from November 22,
2005.  A rating in excess of 10 percent is not warranted, as
the examiner specifically noted that the left anterior
cruciate ligament was only lax for about 5 mm.  There were no
findings of laxity of the right knee; therefore, a separate
rating for the right knee under Diagnostic Code 5257 is not
warranted.

To the extent that the claim has been denied, the
preponderance of the evidence is against the claim.  Thus,
the benefit-of-the doubt doctrine does not apply, and the
claim must be denied.  38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Left foot

The residuals of a left foot sesamoid fracture of have been
rated as noncompensable under Diagnostic Code 5284.  Under
Diagnostic Code 5284, a 10 percent rating is assigned for a
moderate foot injury.  38 C.F.R. � 4.71a, Diagnostic Code
5284 (2006).  On VA examination in October 2001, the veteran
was diagnosed as having status post fracture, left foot,
"without residual defect."  When he was examined in
November 2005, the veteran reported that he wore soft sole
inserts, and that his feet prevented him from doing sports.
He had a normal range of motion of the ankle.  His feet
showed hammering of the second toe of both feet.  There was
no decreased sensation or decreased range of motion of the
foot or toes, with the exception of loss of extension of the
second toe.  There was also no severe or abnormal callousing.
X-rays revealed no evidence of acute fracture or significant
bone lesion.

In sum, even when the provisions of 38 C.F.R. �� 4.40 and
4.45 as well as Deluca are considered, the evidence does not
show that the veteran has met the criteria for a higher
rating under Diagnostic Code 5284 as there is no evidence of
a moderate disability of the left foot.  The Board finds that
the evidence of pain on use and other symptoms, in
conjunction with the minimal objective physical findings, is
insufficient to establish a moderate disability.  The veteran
was able to tiptoe and heel walk.  Although he reports pain,
he had no essentially functional loss due to pain.  The Board
is unable to conclude that this level of functioning is
indicative of a moderate disability.

The preponderance of the evidence is against the assignment
of a 10 percent rating for the veteran's residuals of a left
foot sesamoid fracture.  Thus, the benefit-of-the doubt
doctrine does not apply, and the claim must be denied.  38
U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

ORDER

Entitlement to an initial disability evaluation in excess of
20 percent for degenerative disc disease and traumatic
arthritis of the lumbar spine is denied.

Entitlement to a  separate noncompensable disability rating
for mild, incomplete paralysis of the right lateral femoral
cutaneous nerve is granted, effective from April 9, 2003,
subject to the regulations applicable to the payment of
monetary awards.

Entitlement to a compensable rating for chronic left knee
strain with calcific tendonitis of the left patella tendon
for the period prior to June 12, 2002, is denied.

Entitlement to a compensable rating for chronic right knee
strain for the period prior to June 12, 2002, is denied.

Entitlement to a disability rating in excess of 10 percent
for bilateral degenerative joint disease of the knees for the
period from June 12, 2002, forward, is denied.

Entitlement to a separate 10 percent rating for
subluxation/instability of the left knee is granted,
effective from November 22, 2005, subject to the regulations
applicable to the payment of monetary awards.

Entitlement to an initial compensable disability rating for
the residuals of a left foot sesamoid fracture is denied.

____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


disposition: remanded

text: Service connection is precluded for the cause of the veteran's death if he intentionally committed suicide, unless the suicide resulted from mental unsoundness due to service- connected disability, particularly if there is evidence of a reasonably adequate motive which could lead a rational person to self-destruction. 38 U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.1, 3.302, 3.312 (2006). [is remanded]

text:
Citation Nr: 0709000
Decision Date: 03/28/07    Archive Date: 04/09/07

DOCKET NO.  04-29 083	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

W. R. Harryman, Counsel

INTRODUCTION

The veteran retired in September 1996 after approximately 20
years' active service.  He died in December 2002.  The
appellant is his surviving spouse.  She appealed to the Board
of Veterans' Appeals (Board) from a June 2003 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, which denied her cause-of-
death claim.  That decision also denied her claims for
accrued benefits and Dependents' Educational Assistance, but
she did not appeal those additional claims.  See 38 C.F.R.
� 20.200 (2006).  Therefore, the only issue on appeal
concerns her entitlement to service connection for the cause
of the veteran's death.

On her Substantive Appeal (VA Form 9), received in July 2004,
the appellant indicated that she wanted a hearing at the RO
before the Board.  But she later indicated in November 2005
that she was withdrawing her hearing request, instead wanting
the Board to consider her appeal on the record.  See
38 C.F.R. � 20.704(e).

Since the cause-of-death claim at issue must be further
developed before being decided on appeal, the Board is
remanding this case to the RO via the Appeals Management
Center (AMC) in Washington, DC.  VA will notify the appellant
if further action is required.

REMAND

A preliminary review of the file discloses that service
connection was established for several of the veteran's
disabilities - including diabetic nephropathy rated
30 percent; diabetes mellitus rated 20 percent; residuals of
a neck injury, with arthritis, rated 20 percent; residuals of
a low back injury rated 20 percent; and hypertension rated 10
percent; for a combined disability rating of 60 percent.

The private medical records indicate the veteran was treated
for pain due to his service-connected disabilities during the
several years prior to his death, including with narcotics,
and had even been referred to the pain clinic shortly before
he died.  As the appellant, his surviving spouse is
contending he committed suicide due to the chronic,
intractable pain he was experiencing.  In support of her
claim, she has submitted two statements from his neurologist.
In one statement, the physician reported that he had no
reason to question the veteran was in a lot of pain because
of his back and peripheral neuropathy; in the other
statement, the physician offered his opinion that the pain
from the veteran's diabetic peripheral neuropathy "could
have contributed to his quality of life and subsequent
untimely demise."  In addition, the appellant has submitted
statements from two individuals who knew the veteran and who
provided lay evidence as to his state of mind during the
several months prior to his suicide.  Those statements
reflect his persistent complaints of pain - and his apparent
despondency over that pain - and his consideration of
possible eventual suicide.

Service connection is precluded for the cause of the
veteran's death if he intentionally committed suicide, unless
the suicide resulted from mental unsoundness due to service-
connected disability, particularly if there is evidence of a
reasonably adequate motive which could lead a rational person
to self-destruction.  38 U.S.C.A. �� 1110, 1310 (West 2002);
38 C.F.R. �� 3.1, 3.302, 3.312 (2006).

The evidence in this case raises the question of whether the
veteran developed a psychiatric disorder (i.e., mental
unsoundness) due to his service-connected disabilities -
such as to have caused him to commit suicide.  But this is a
medical issue; the Board is prohibited from exercising its
own independent judgment to resolve medical questions.  See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Further,
it is now well settled that laypersons without medical
training, such as the appellant and her friends, are
similarly unqualified to render medical opinions regarding
matters such as diagnoses and determinations of etiology,
which call for specialized medical knowledge.  See Espiritu
v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R.
� 3.159 (2006) (competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions).

In addition, in Obert v. Brown, 5 Vet. App. 30 (1993), the
Court held that a medical opinion expressed in equivocal
terms of "may" also implies "may or may not" and,
therefore, is too speculative to establish a plausible claim.
See also Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett
v. West, 11 Vet. App. 420 (1998); Bloom v. West, 12 Vet. App.
185 (1999) (by using the term "could," without supporting
clinical data or other rationale, a medical opinion simply is
too speculative in order to provide the degree of certainty
required for medical nexus evidence).  That said, the use of
cautious language does not always express inconclusiveness in
a doctor's opinion on etiology.  Rather, an etiological
opinion should be viewed in its full context and not
characterized solely by the medical professional's choice of
words.  See Lee v. Brown, 10 Vet. App. 336, 338 (1997).

Therefore, the Board finds that additional development is
needed in this case, i.e., a medical opinion as to whether
the veteran developed a psychiatric disorder due to his
service-connected disabilities and whether such a disorder
led him to commit suicide.

Accordingly, this case is REMANDED for the following
additional development and consideration:

1.  Send the appellant notice compliant
with the Veterans Claims Assistance Act
of 2000 (VCAA), in particular with the
Court's decision in Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).

2.  Refer the claims file to a
psychiatrist for a medical opinion.  The
designated psychiatrist should review the
claims file for the veteran's pertinent
medical and other history, including a
complete copy of this remand, all
treatment and examination records,
the January and July 2003 statements by a
private neurologist, the statements by
two friends of the veteran submitted in
May 2003, and the statements of the
appellant herself, and should provide
answers to the following questions:

a.  Is it at least as likely as not
(50 percent probability or greater)
the veteran developed a psychiatric
disorder due to his service-
connected disabilities - and, more
specifically, his inability to cope
with the debilitating pain
associated with them?

b.  If so, is it at least as likely
as not the psychiatric disorder led
him to commit suicide in December
2002?

c.  If the veteran did not develop a
psychiatric disorder as a result of
his service-connected disabilities,
is it at least as likely as not
there were other circumstances
related to his service-connected
disabilities that led him to commit
suicide in December 2002?

The examiner's opinion should be
supported by rationale, including
reference to pertinent evidence in the
file.

3.  Then readjudicate the appellant's
claim in light of the additional evidence
obtained.  If benefits are not granted to
her satisfaction, send her and her
representative a supplemental statement
of the case (SSOC) and give them an
opportunity to respond to it before
returning the file to the Board for
further appellate consideration.

The appellant need take no action until otherwise notified,
but she may furnish additional evidence and argument while
the case is in remand status.  Kutscherousky v. West, 12 Vet.
App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992); Booth v. Brown, 8 Vet. App. 109 (1995).  By this
REMAND, the Board intimates no opinion, either legal or
factual, as to any final determination warranted in this
case.  The purpose of this REMAND is to obtain clarifying
information and to provide the appellant due process.

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2006).

_________________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2006).