judge_norm: JAMES L MARCH

text:
Citation Nr: 0527000
Decision Date: 10/04/05    Archive Date: 10/17/05

DOCKET NO.  04-43 090	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Entitlement to a rating in excess of 40 percent for
ventral hernia.

2.  Entitlement for total disability rating based on
individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. P. Shonk, Associate Counsel

INTRODUCTION

The veteran served on active duty from November 1943 to April
1946.

This matter comes to the Board of Veterans' Appeals (Board)
from rating decisions of the Department of Veterans Affairs
(VA) Regional Office (RO) in Nashville, Tennessee.  A
November 2002 rating decision implemented a November 2002
Board decision that had granted an increased rating of 40
percent for ventral hernia, and the veteran filed a December
2003 notice of disagreement.  A May 2004 rating decision
denied entitlement to TDIU, and the veteran filed a June 2004
notice disagreement.  An October 2004 statement of the case
addressed both issues, and the veteran perfected the appeal
with an October 2004 VA Form 9.

The veteran testified at an August 2005 hearing before the
undersigned Veterans Law Judge, and the transcript is of
record.  It is noted that service connection is in effect for
hemorrhoids with a 10 percent rating, and it appears that the
veteran raised a claim for an increased rating via testimony.
The RO should address this matter accordingly.

The issue of TDIU 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.

FINDING OF FACT

The veteran's hernia is not characterized as massive,
persistent, severe diastasis of recti muscles or extensive
diffuse destruction or weakening of muscular and fascial
support of abdominal wall so as to be inoperable.

CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent rating for
ventral hernia have not been met.  38 U.S.C.A. � 1155 (West
2002); 38 C.F.R. �� 4.1, 4.7, 4.114, Diagnostic Code 7339
(2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) are
examined.

The record contains January 2004 and March 2004 letters
informing the veteran of which portion of information should
be provided by the claimant, and which portion VA will try to
obtain on the claimant's behalf.  The March 2004 letter told
the veteran of information and evidence needed to
substantiate and complete a claim for an increased rating.
38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).  Additionally, the
Board's November 2002 decision, the RO's implementing rating
decision, and the October 2004 statement of the case
demonstrated the kind of evidence necessary to show
entitlement to a rating in excess of 40 percent.

Though the March 2004 letter came after the rating decision
that implemented the Board's decision to assign an increased
rating of 40 percent, see Pelegrini v. Principi, 18 Vet. App.
112 (2004), the RO appropriately provided the veteran with
subsequent VCAA notification via the letter.  See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005) (holding that any timing
error can be cured when VA employs proper subsequent
process).  Moreover, the veteran was generally advised to
submit any additional evidence that pertained to the matter,
including via statement of the case and supplemental
statement of the case thereafter.  Pelegrini, 18 Vet. App. at
121.

Next, VCAA requires VA to assist the claimant in obtaining
evidence necessary to substantiate a claim, 38 C.F.R.
� 3.159(c), which includes providing a medical examination
when such is necessary to make a decision on the claim.  As
detailed below, following the Board's decision that granted
an increased rating of 40 percent, the veteran has not
supplied additional evidence that might necessitate a VA
examination for the purpose of assessing the current severity
of his ventral hernia.  The Board considered as probative and
relevant evidence the veteran's testimony at his recent
hearing, as well as a March 2004 VA examination report
(performed pursuant to the TDIU claim).  VA fulfilled its
duties to the veteran to the extent possible given the
particular circumstances of this case.

Laws and Regulations

Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities.  38
C.F.R. Part 4.  Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating.  Otherwise, the lower
rating will be assigned.  38 C.F.R. � 4.7.  Any reasonable
doubt regarding the degree of disability is resolved in favor
of the veteran.  38 C.F.R. � 4.3.

The evaluation of the same disability under various diagnoses
is to be avoided.  Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation.  Both the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided.  38 C.F.R. � 4.14.
Notwithstanding the above, VA is required to provide separate
evaluations for separate manifestations of the same
disability which are not duplicative or overlapping.  See
Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations.  See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  These
regulations include, but are not limited to, 38 C.F.R. � 4.1,
which requires that each disability be viewed in relation to
its history.  Additionally, where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, the present level of
disability is of primary importance.  Francisco v. Brown, 7
Vet. App. 55, 58 (1994).

In claims for VA benefits, VA shall consider all information
and lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary.  When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant.  38 U.S.C.A.
� 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49
(1990).

Diagnostic Code 7339 pertaining to postoperative ventral
hernia provides as follows:  Massive, persistent, severe
diastasis of recti muscles or extensive diffuse destruction
or weakening of muscular and fascial support of abdominal
wall so as to be inoperable warrants a 100 percent rating;
and large, not well supported by belt under ordinary
conditions warrants a 40 percent rating.

Analysis

A January 1998 rating decision granted the veteran's claim of
entitlement to compensation under 38 U.S.C.A. � 1151 for
ventral hernia and assigned a disability evaluation of 20
percent (the veteran had sustained the hernia when he had a
cholecystectomy procedure in 1983).  As noted above, the
Board granted an increased rating of 40 percent in a November
2002 decision, and veteran disagreed with the implementing
rating decision.

The record lacks evidence that the veteran's ventral hernia
has manifested to the extent anticipated by the maximum
schedular.  For example, at a March 2004 VA examination
(performed primarily for the purpose of the pending TDIU
claim) the examiner noted incomplete ventral wall hernias
along the veteran's midline surgical scar.  The veteran
reported that he had an abdominal binder, but he rarely used
it.

Moreover, treatment records gathered after the Board's
decision from the Nashville VAMC dated April 2003 to March
2004 failed to indicate problems with the veteran's ventral
hernia.  A November 2004 medical statement from David L.
Lybarger, RN, stated that the double ventral hernia adversely
impacted the veteran's ability to engage in his usual
occupation, but did not identify symptomatology contained in
the diagnostic criteria for a 100 percent evaluation.  At his
hearing, though the veteran's representative asserted that
the veteran should undergo a current VA examination, the
veteran did not testify to a worsening of symptomatology of
his ventral hernia; rather, the bulk of the veteran's
testimony concerned the impact the hernia had on his
unemployability.

As such, the record lacks evidence that the veteran's hernia
condition worsened to the extent of severity necessary for
the next higher evaluation of 100 percent at this time.

ORDER

Entitlement to a rating in excess of 40 percent for ventral
hernia is denied.

REMAND

First, the veteran has raised the issue of a higher rating
for his hemorrhoids.  This issue is inextricably intertwined
with the TDIU issue and must be resolved before final
appellate action of the TDIU issue.

Further, the veteran testified that he stopped working as a
heavy equipment operator in 1983 when he sustained a hernia,
based upon medical advice.  The record contains a March 2004
VA examination report that addressed the matter of
unemployability.  The examiner, however, did not appear to
have access to the veteran's claims file.  Moreover, the
examiner focused on the fact that the veteran's ventral wall
hernia happened 35 years after service, and then ultimately
concluded that the veteran was not unemployable.  Because the
veteran receives disability compensation based upon
38 U.S.C.A. � 1151 entitlement, any connection with military
service is not relevant to the question about the veteran's
ability to secure or follow a substantially gainful
occupation as a result of disabilities for which he receives
compensation.  To afford the veteran every benefit, he should
undergo another VA examination.

Also, it is noted that the veteran is considered permanently
and totally disabled for the purposes of pension benefits.
As such, and given the veteran's employment history in
relation to his hernia (referred to as the veteran's main
medical problem by the March 2004 VA examiner), the RO should
appropriately submit the veteran's case to the Director,
Compensation and Pension Service under 38 C.F.R. � 4.16(b).

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

1.  The RO should develop and
adjudicate the issue of entitlement to
an increased rating for the veteran's
hemorrhoids.

2.  The RO should arrange for a VA
examination concerning the TDIU claim.
After reviewing the veteran's claims
file, the examiner should provide an
opinion as to whether the veteran's
disabilities for which he receives
compensation alone prevent him from
securing and following substantially
gainful employment consistent with
education and work background.  All
opinions and conclusions expressed must
be supported by a complete rationale in
a report.

3.  Then, the rating board should
submit the veteran's case to the
Director, Compensation and Pension
Service, for consideration of the TDIU
issue pursuant to 38 C.F.R. � 4.16(b).
The rating board should include a full
statement as to the veteran's
compensated disabilities, employment
history, education and vocational
attainment, and all other factors
having a bearing on this issue.

4.  Then, the RO should readjudicate the
TDIU issue.  If the determination remains
unfavorable to the veteran, the RO must
issue a Supplemental Statement of the
Case and provide him a reasonable period
of time in which to respond before this
case is returned to the Board

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, �
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C.A. �� 5109B, 7112).

______________________________________________
	JAMES L. MARCH
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: GEORGE R SENYK

disposition: denied

condition: hypertension

text:
Citation Nr: 0528000
Decision Date: 10/18/05    Archive Date: 11/01/05

DOCKET NO.  99-11 413A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California

THE ISSUE

Entitlement to an effective date prior to June 11, 1996, for
the grant of service connection for arteriosclerotic heart
disease (ASHD) with hypertension.

REPRESENTATION

Appellant represented by:	Glenn R. Bergmann, Attorney at
Law

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

R. A. Seaman, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from
July 1966 to June 1968.  This matter is before the Board of
Veterans' Appeals (Board) on December 2003 remand from the
United States Court of Appeals for Veterans Claims (Court)
pursuant to a Joint Motion by the parties.  The appeal was
initiated from an April 1998 decision by the Oakland
Department of Veterans Affairs (VA) Regional Office (RO),
which denied an effective date prior to June 11, 1996, for
the grant of service connection for ASHD with hypertension.
In June 1999, the veteran appeared for a personal hearing
before a hearing officer at the RO.  The case came before the
Board in October 2002, when the Board denied an effective
date prior to June 11, 1996, for the grant of service
connection for ASHD with hypertension.  The veteran appealed
that decision to the Court.  By an December 2003 Order, the
Court vacated the October 2002 Board decision and remanded
the matter for readjudication consistent with the Joint
Motion.  In August 2004, the Board remanded the matter for
reasons set forth in the Joint motion (to include notice of
the Veterans Claims Assistance Act of 2000 (VCAA)).

FINDINGS OF FACT

The veteran's initial claim of service connection for ASHD
was received by the RO on June 11, 1996; this was more than a
year after his June 1968 separation from active duty, and the
RO granted service connection for ASHD with hypertension, as
secondary to service-connected post-traumatic stress disorder
(PTSD), effective from the date the claim was received.

CONCLUSION OF LAW

An effective date prior to June 11, 1996, for the grant of
service connection for ASHD with hypertension is not
warranted.  38 U.S.C.A. �� 5107, 5110 (West 2002); 38 C.F.R.
� 3.400 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VCAA, in part, 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, 3.326(a)
(2005).

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);
38 C.F.R. � 3.159(b); 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 decision on a claim.  Pelegrini v. Principi, 18
Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).

The veteran was properly (See VAOPGCPREC 8-2003 (Dec. 2003))
provided VCAA notice on the "downstream" issue of the
effective date for an award of service connection by a May
1999 statement of the case (SOC).  Although he was provided
the appropriate and adequate notice/information subsequent to
the rating decision appealed, he is not prejudiced by any
notice timing defect.  He was notified (in the April 1998
decision, in the SOC, in a supplemental SOC (SSOC) issued in
August 1999, in November 2004 correspondence from the RO, and
in an SSOC issued in January 2005) of everything required,
and has had ample opportunity to respond or supplement the
record.  Specifically, the November 2004 correspondence and
the January 2005 SSOC informed him of the allocation of
responsibility of the parties to identify and obtain
additional evidence in order to substantiate his claim.  The
case was reviewed de novo subsequent to the notice, and the
veteran has had ample opportunity to respond.  Consequently,
he is not prejudiced by any notice timing deficiency.
Regarding content of notice, the April 1998 decision, the May
1999 SOC, and the SSOCs issued in August 1999 and January
2005, informed him of the controlling law and regulations,
what the evidence showed, and why the claim was denied.  The
SOC and the SSOCs specifically advised him of what the
evidence must show to establish entitlement to an effective
date earlier than June 11, 1999, for a grant of service-
connection, and those documents advised the veteran of what
information and evidence VA needed from him.  The RO asked
him to submit, or provide releases for VA to obtain, any
pertinent records.  He was expressly asked to let VA know
"[i]f there is any other evidence or information that you
think will support your claim," and to send to VA "any
evidence in your possession that pertains to your claim."
(See November 19, 2004 letter).  Everything submitted to date
has been accepted for the record and considered.

Regarding the duty to assist, the Board directed additional
development in August 2004.  The development (pursuant to the
December 2003 Joint Motion), to include additional VCAA
notice and readjudication of the claim (with specific
consideration of the claim under the provisions of 38 C.F.R.
� 3.155), has been completed.  A Decision Review Officer
reviewed the claim de novo (see January 2005 SSOC).  VA has
obtained all pertinent/identified records that could be
obtained, and all evidence constructively of record has been
secured.  Evidentiary development is complete to the extent
possible; VA's duties to notify and assist are met.  Notably
also, given the nature of the matter at hand, the disposition
will rest essentially on what is already of record.  It is
not prejudicial to the veteran for the Board to proceed with
appellate review.  Mayfield, supra; Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004).

Background

Service medical records are negative for symptoms, clinical
findings, or diagnosis of ASHD, and there is no evidence that
such disease was manifested in the first postservice year.
The veteran did not file a claim seeking service connection
for ASHD or hypertension within the first postservice year.

In October 1994, the veteran filed a claim seeking service
connection for PTSD.  The claim of service connection for
PTSD was negative for any reference to a heart disorder of
any kind.  On March 24, 1995, the RO received correspondence
from the veteran with "enclosed additional information in
support of the PTSD claim" (emphasis added).  The
attachments include a copy of a letter from the veteran to a
hospital committee seeking that he not be required to
continue ER and ICU duties because they bring on stress-
causing flashbacks.  Neither the letter to the hospital
committee, nor the letter to the VA makes any mention of a
claim of service connection for cardiovascular disability.
Service connection for PTSD was awarded by the RO in a May
1995 rating decision, effective October 21, 1994, the date VA
received the veteran's PTSD claim.

In a letter received by the RO on June 11, 1996, the veteran
stated that he was having additional difficulties with his
PTSD that had contributed "immensely to the two heart
attacks I have survived."  Although he did not communicate
specifically that he was seeking secondary service connection
for ASHD, the RO construed this statement as a claim of
secondary service connection for ASHD.  Following additional
development, the RO issued an August 1997 decision that
awarded service connection for ASHD with hypertension, as
secondary to PTSD, rated totally disabling, effective June
11, 1996.

Essentially, the veteran asks VA to find the diagnosed heart
disease ancillary to his PTSD claim, in that he was suffering
from the heart condition at the time he filed his initial
claim for service connection for PTSD in October 1994.  In
essence, the veteran and his representative contend that the
effective date of service connection for ASHD should be the
same date that VA received his initial claim for PTSD, i.e.,
October 21, 1994, because PTSD caused his heart disorder.  It
is not in dispute that medical records associated with the
claims folder establish that PTSD and ASHD existed prior to
June 1996.

At a June 1999 hearing before a hearing officer at the RO,
the veteran testified that he did not file a claim seeking
service connection for his heart disorder earlier because the
VA was not accepting or recognizing these claims, and he
reported that he was told he would be just wasting his time
and adding to his overall PTSD distress.

The veteran's representative submitted written argument in
September 2005, contending that the effective date for
service connection for ASHD should be March 24, 1995, "at a
minimum," as that was the date VA received a letter from the
veteran in which he noted that his Vietnam experiences and
PTSD prevented him from working in the Emergency Room, and
resulted in two "cardiac events that required
angioplasties."  In his argument, the representative
reiterated that the medical evidence of record shows that
PTSD and ASHD existed prior to June 1996.

Legal Criteria and Analysis

The statutory guidelines for the determination of an
effective date of an award of disability compensation are set
forth in 38 U.S.C.A. � 5110.  Except as otherwise provided,
the effective date of an evaluation and award of compensation
based on an original claim, a claim reopened after final
disallowance, or a claim for increase will be the date of
receipt of the claim or the date entitlement arose, whichever
is the later.  38 C.F.R. � 3.400.  This rule holds true in
cases of de novo claims for service connection, except when a
claim is received within one year after separation from
service, in which case the effective date of the award is the
day following separation from service.  38 C.F.R. �
3.400(b)(2)(i).

A specific claim in the form prescribed by the Secretary of
Veterans Affairs must be filed in order for benefits to be
paid to any individual under the laws administered by VA. 38
C.F.R. � 3.151(a).  The term "claim" or "application"
means a formal or informal communication in writing
requesting a determination of entitlement or evidencing a
belief of entitlement, to a benefit.  38 C.F.R. � 3.1(p).
"Date of receipt" generally means the date on which a
claim, information or evidence was received by VA.  38 C.F.R.
� 3.1(r).

The applicable statutory and regulatory provisions require
that VA look to all communications from the appellant which
may be interpreted as applications or claims - formal and
informal - for benefits.  In particular, VA is required to
identify and act on informal claims for benefits.  38
U.S.C.A. � 5110(b)(3); 38 C.F.R.
�� 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App.
196 (1992).  An informal claim must identify the benefit
sought.  38 C.F.R. � 3.155(a).

The date of outpatient or hospital examination will be
accepted as the date of receipt of a claim for increased
benefits, but only when such reports relate to an examination
or treatment of a disability for which service connection has
previously been established (emphasis added).  38 C.F.R. �
3.157(b).

As noted, the controlling law and regulation provide that the
effective date of the grant of service connection (here for
ASHD) will be the date of receipt of the claim or the date
entitlement arose, whichever is later.  In essence, the
determination is based on timing, i.e., when the veteran
filed the original claim for service connection for ASHD.

The veteran contends that the date of receipt of his initial
claim of service connection for PTSD should be the effective
date of the award of compensation for the medical condition
(ASHD) caused by the PTSD.  The pertinent facts are not in
dispute, and the law, specifically 38 U.S.C.A. �� 5101 and
5110, is dispositive in this matter.  Together, 38 U.S.C.A.
�� 5101 and 5110 mandate that a claim must be specific, and
that the effective date of an award based on an original
claim shall not be earlier than the date of receipt of
application therefor (emphasis added).  Here, the first
communication from the veteran, formal or informal,
specifying a claim of service connection for ASHD was his
letter received June 11, 1996.  There simply is no legal
basis for entitlement to benefits for ASHD prior to that
date.

VA is not required to anticipate any potential claim for a
particular benefit where no intention to raise it was
expressed.  See Brannon v. West, 12 Vet. App. 32 (1998);
Talbert v. Brown, 7 Vet. App. 352 (1995).  There is no
provision in the law for awarding an earlier effective date
based on the veteran's assertion that the disability existed
before he filed the claim.  That his PTSD caused his ASHD
with hypertension is not in dispute, but that fact is
irrelevant to the matter at hand.  The Board acknowledges the
veteran's statements and contention that his ASHD symptoms
are shown by competent medical evidence as early as 1988.
However, his claim for service connection for ASHD was not
received until June 1996.  There is nothing in the claims
file which may be reasonably construed as a formal or
informal claim brought prior to June 11, 1996, i.e., no
communication from the veteran or his representative received
prior to June 1996 that may reasonably be construed as an
indication that he was seeking service connection, either on
a direct or secondary basis, for ASHD.  See 38 C.F.R.
�� 3.151, 3.155.

As to the specific contention by the veteran's attorney that
the correspondence (with attachments) from the veteran to the
RO in March 1995 constituted an informal claim seeking
service connection for ASHD, the language of 38 C.F.R.
� 3.155 is unambiguous in specifying that an informal claim
"must identify the benefit sought."  There is nothing in
any of the correspondence/attachments received by the RO
March 24, 1995 specifying that the veteran was seeking
service connection for ASHD.  What the veteran did indicate
was that he was submitting the materials in connection with
his claim pertaining to PTSD (which the RO then granted).
Consequently, that correspondence cannot be an informal claim
of service connection for ASHD (triggering VA's duty to
forward the veteran a formal application).

In summary, the record in this case clearly indicates that he
first filed a claim seeking service connection for ASHD in
June 1996 (the RO received the claim on June 11, 1996), and
there is no provision in the law for making the award
retroactive to October 1994 (the month in which VA received
his initial claim of service connection for PTSD) or earlier,
as he seeks.  There is no statutory or regulatory authority
which would permit the Board to grant an earlier effective
date in this case.  Thus, as a matter of law, the appeal
seeking an earlier effective date for the grant of service
connection for ASHD with hypertension must be denied.
Sabonis v. Brown, 6 Vet. App. 426 (1994).

The "benefit of the doubt" doctrine does not apply because
the preponderance of the evidence is against the veteran's
claim.

ORDER

An effective date prior to June 11, 1996, for the grant of
service connection for ASHD with hypertension is denied.

____________________________________________
	GEORGE R. SENYK
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: U R POWELL

condition: psychiatric

text:
Citation Nr: 0529000
Decision Date: 10/28/05    Archive Date: 11/09/05

DOCKET NO.  03-18 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (RO) Regional Office in
Cleveland, Ohio

THE ISSUES

1.  Entitlement to secondary service connection for
diverticulosis.

2.  Entitlement to an increased rating for anxiety neurosis,
currently assigned a 30 percent evaluation.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

R.P. Harris, Counsel

INTRODUCTION

The appellant had active service from June 1965 to January
1969.

This matter came before the Board of Veterans' Appeals
(Board) from an August 2002 rating decision by the Cleveland,
Ohio, Regional Office (RO), which denied secondary service
connection for diverticular disease and confirmed a 30
percent rating for anxiety neurosis.  In August 2003, an RO
hearing was held before a Decision Review Officer.

Although it appears that appellant and his representative, in
a May 2003 Substantive Appeal and at the RO hearing, raised
the issue of secondary service connection for a stomach
disorder, the RO in a February 2004 rating decision only
denied direct-incurrence service connection for a stomach
disorder.  Parenthetically, appellant has not expressed
formal disagreement with that February 2004 rating decision,
and as such, the issue of direct-incurrence service
connection for a stomach disorder is not for appellate
consideration at this time.  Further, since the issue of
secondary service connection for a stomach disorder has not
been adjudicated by the RO, it is referred to the RO for
appropriate action.  Kellar v. Brown, 6 Vet. App. 157 (1994).

FINDINGS OF FACT

1.  It has not been shown, by credible competent evidence,
that diverticulosis was caused or aggravated by the service-
connected anxiety neurosis.

2.  Appellant's service-connected anxiety neurosis is
manifested primarily by mildly anxious mood, restless sleep,
and reported global assessments of functioning which indicate
that overall, appellant is primarily no more than mildly
impaired from a psychologic, social, and industrial
standpoint.

CONCLUSIONS OF LAW

1.  Diverticulosis was not proximately due to, the result of,
or aggravated by service-connected disability.  38 C.F.R.
� 3.310(a) (2003); Allen v. Brown, 7 Vet. App. 439 (1995).

2.  The criteria for a rating in excess of 30 percent for
anxiety neurosis have not been met.  38 U.S.C.A. �� 1155,
5107 (West 2002); 38 C.F.R. �� 3.321(b)(1), 4.1, 4.2, 4.7,
4.10, 4.130, Diagnostic Code 9400 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA Notice

On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), codified at
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) (2004).  The VCAA describes VA's duty to notify and
assist claimants in substantiating a claim for VA benefits.

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 & Supp. 2005); 38 C.F.R. � 3.159(b) (2004);
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).

VA satisfied its duty to notify by means of written
correspondence, including an April 2002 VCAA letter and a
Statement of the Case and Supplemental Statement of the Case
that were sent to the appellant.  Such written correspondence
informed the appellant of what information and evidence was
required to substantiate the claims and of his and VA's
respective duties for obtaining evidence.  It is clear from
the record, including the April 2002 VCAA letter, that
appellant was explicitly asked to provide "any evidence in
[his] possession that pertains" to his claims.  See 38
C.F.R. � 3.159(b)(1).  The Board finds that the RO informed
him that additional information or evidence was needed to
support his claims, and asked him to send the information or
evidence to the AOJ.  In addition, the Statement of the Case
included the provisions of 38 C.F.R. � 3.159(b).  Under these
circumstances, the Board is satisfied that the appellant has
been adequately informed of the need to submit relevant
evidence in his possession.

Regarding the timing of notice, in Pelegrini v. Principi, 18
Vet. App. 112 (2004), the Court held, in part, that VCAA
notice, as required by 38 U.S.C.A. � 5103(a), must be
provided to a claimant before the initial unfavorable AOJ
decision on a claim for VA benefits.  In the present case,
the unfavorable August 2002 AOJ decision that is the basis of
this appeal was decided subsequent to the issuance of
appropriate VCAA notice in April 2002.  The content of the
notice provided to the appellant as discussed above 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.  The
appellant has been provided with every opportunity to submit
evidence and argument in support of his claims and to respond
to VA notice.  Further, the Board finds that the purpose
behind the notice requirement has been satisfied because the
appellant has been afforded a meaningful opportunity to
participate effectively in the processing of his claim.  All
the VCAA requires is that the duty to notify is satisfied,
and that claimants are given the opportunity to submit
information and evidence in support of their claim.  Once
this has been accomplished, all due process concerns have
been satisfied.  See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); See also 38
C.F.R. � 20.1102 (harmless error).  In this case, each of the
four content requirements of a VCAA notice has been fully
satisfied.  For these reasons, it is not prejudicial to the
appellant for the Board to proceed to finally decide this
appeal.  See VAOPGCPREC 7-2004 (July 16, 2004).

Duty to Assist

With regard to the duty to assist, the record contains VA and
private medical records and recent 2002 VA psychiatric and
gastroenterologic examinations.  Said VA psychiatric
examination together with VA clinical records sufficiently
described the nature and severity of the service-connected
anxiety disorder, and included assignment of scores on the
Global Assessment of Functioning Scale (GAF Scale), which
deals with the degree to which an individual functions
socially and industrially.  Said VA gastroenterologic
examination included an adequate medical opinion as to
whether appellant's diverticular disease was related to his
anxiety neurosis.

Appellant and his representative have had an opportunity to
submit medical records and other documents, and appellant has
testified at a hearing on appeal.  It does not appear that
appellant or his representative has informed the VA of the
existence of any available, additional, specific competent
evidence that might prove to be material concerning said
appellate issues in question.  See Mayfield, supra.

Thus, the Board concludes that the duty to assist as
contemplated by applicable provisions of VCAA has been
satisfied with respect to the issues on appeal.

I.  Secondary Service Connection for Diverticulosis

Service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury.  38 C.F.R. � 3.310(a).  Where a claimant's
service-connected disability aggravates, but is not the
proximate cause of, a non-service-connected disability,
service connection may be granted for that increment in
severity of the non-service-connected disability attributable
to the service-connected disability.  Allen, supra.

The post-service clinical evidence indicates that appellant
had anxiety over the years.  Private medical records revealed
that in October 1969, appellant had complaints of right upper
abdominal pain and probable spastic colon syndrome was
diagnosed.  On February 1970 VA examination, an abdominal
evaluation was unremarkable.  In February 1975, a
psychophysiological gastrointestinal disorder was diagnosed.
However, the earliest post-service clinical evidence
documenting diverticulosis was not until an October 2001
colonoscopy was performed due to rectal pain and bleeding,
and a few diverticula were detected.  Mild diverticulosis,
internal hemorrhoids, and normal cecum were diagnosed post
colonoscopy.

On July 2002 VA gastroenterologic examination, appellant
reported that approximately one and a half years ago, he
began having painful bowel movements and bleeding; and that a
colonoscopy was performed which showed benign polyps and mild
diverticulitis.  Significantly, the examiner opined that
appellant had diverticulosis "which is a process of aging";
that it was not likely that his diverticulosis was related to
anxiety neurosis; and that his problem was primarily
diverticulosis, not diverticulitis.

Although it is asserted by appellant, or on his behalf, that
his diverticular disease is related to the service-connected
psychiatric disability, a lay person's opinion as to medical
causation is not competent evidence, since a lay person lacks
medical expertise to offer such an opinion.  Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).

In short, that July 2002 VA gastroenterologic medical opinion
is an overwhelmingly negative piece of evidence, since it
persuasively explained that appellant's diverticular disease
was due to the aging process and was unrelated to appellant's
service-connected psychiatric disability.  Said medical
opinion has not been rebutted by any competent credible
evidence of record.  The Board concludes, therefore, that it
would be mere speculation to assume that the appellant's
diverticular disease was in any way related to his anxiety
disorder.  To resort to mere speculation is prohibited by the
benefit-of-the-doubt doctrine.  38 U.S.C.A. � 5107 (West
2002) and Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Thus, the claim for secondary service connection for
diverticulosis is denied.  38 C.F.R. � 3.310(a), Allen.
Since the evidence preponderates against allowance of this
claim, the benefit-of-the-doubt doctrine is inapplicable, for
the aforestated reasons.

II.  An Increased Rating for Anxiety Neurosis

Disability evaluations are determined by application of a
schedule of ratings which is based on average impairment of
earning capacity under the VA's Schedule for Rating
Disabilities.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  The
Board will consider appellant's service-connected disability
on appeal in the context of the total history of that
disability, particularly as it affects the ordinary
conditions of daily life, including employment, as required
by the provisions of 38 C.F.R. �� 4.1, 4.2, 4.10 and other
applicable provisions.  Schafrath v. Derwinski, 1 Vet. App.
589 (1991).

It should be pointed out that the 30 percent evaluation in
effect for appellant's anxiety disorder is a "protected"
rating, since it has been in effect for more than 20 years.
See 38 C.F.R. � 3.951(b) (2004).  The applicable VA Schedule
for Rating Disabilities provisions provide a general rating
formula for mental disorders, including anxiety disorders.  A
100 percent evaluation requires 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 the activities of daily living (including maintenance
of minimal personal hygiene); disorientation to time or
place; memory loss for names of close relatives, own
occupation, or own name.  A 70 percent rating requires
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships.  A 50 percent rating
requires occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.  38
C.F.R. � 4.130 (effective November 7, 1996).

VA clinical records reveal that in July 2001, appellant
reported that he was doing quite well on his medication for
anxiety, particularly after retiring in January.  A GAF scale
score of 63 was assigned.

On June  2002 VA psychiatric examination, appellant reported
that he had retired approximately a year and a half ago; and
that prior to retirement, he experienced a lot of stress.
His current complaints included restless sleep.  He
reportedly did physical labor on his farm that relieved his
anxiety; liked to be active all day; attended church and was
active there as a part-time minister; visited members of his
community; and was happy in his interpersonal relationships.
He stated that his anxiety did not limit his activity in any
way.  Clinically, he appeared neatly dressed, well-groomed,
friendly, cooperative, and somewhat tense.  Speech was normal
and answers were appropriate.  A mildly anxious mood was
noted.  He was alert and correctly oriented with intact
cognitive functioning.  Anxiety disorder was diagnosed and a
GAF scale score of 65 was assigned.

VA clinical records reveal that in November 2002, appellant
reported that he was doing quite well on his medication.  He
had a bright affect, related well, was pleasant, calm, and
happy, and had goal-directed thoughts.  A GAF scale score of
65 was assigned.  In July 2003, he reported doing "pretty
good" although on occasion, he would become "tense" and
experience stomach upset.  He reported having fragmented
sleep, but slept up to 6 hours nightly.  He reported not
being depressed and that he tried to stay active.  Anxiety
disorder stable on medication was assessed.

During an August 2003 RO hearing, appellant testified that he
did not have panic attacks; and that he was constantly tense,
worked on his farm, went to dinner with his family at least
once a week, and was very active in his church.

It should be pointed out that GAF Scale scores are
significant pieces of evidence that the Board considers in
deciding the appropriateness of an assigned psychiatric
disability rating, but are not determinative in and of
themselves of the appellate issue.  The evidentiary record
reveals that the GAF Scale scores assigned appellant on June
2002 VA psychiatric examination and in the VA clinical
records during the relevant period in question, including in
November 2002, were 63 or 65, and are indicative of no more
than a mild degree of psychiatric impairment.  According to
the American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition
(1994), a GAF Scale score of 61 - 70 contemplates some mild
symptoms, or some difficulty in social, occupational or
school functioning, but generally functioning pretty well,
and has some meaningful interpersonal relationships.  A GAF
Scale score of 51 - 60 contemplates moderate symptoms, or
moderate difficulty in social, occupational or school
functioning.  See Carpenter v. Brown, 8 Vet. App. 240, 242
(1995), wherein the Court explained that "GAF is a scale
reflecting the ['] psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness....[']."

Appellant's psychiatric disability appears to have remained
relatively stable with medication, and he was reportedly
quite active in farming as well as in his church activities.
Significantly, on said 2002 VA psychiatric examination,
appellant's mood was described as only mildly anxious and he
was correctly oriented with essentially intact cognitive
functioning.  It does not appear from the VA clinical records
or his own testimony that his psychiatric state has
appreciably changed since the aforementioned VA psychiatric
examination.

It is noteworthy that despite the adverse impact appellant's
psychiatric disability causes, he has nevertheless engaged in
activities of daily living, including maintaining his
personal appearance, and remained correctly oriented with
essentially intact cognitive functioning.  No bizarre or
inappropriate behavior was indicated.  The evidentiary record
additionally indicates that he has continued to function
without any significant mental health treatment other than
psychotropic medication and outpatient therapy.

The Board finds that the GAF scores of no less than 63, as
well as the other clinical findings, do not more nearly
approximate the criteria for a 50 percent rating, for the
aforestated reasons.  In particular, the clinical records do
not reveal occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships (the
criteria for a 50 percent evaluation under the applicable
rating criteria).

The clinical evidence does not show that appellant's service-
connected psychiatric disability, in and of itself, presents
such an exceptional or unusual disability picture as to
render impractical the application of the regular schedular
standards, as is required for consideration of an
extraschedular evaluation.  38 C.F.R. � 3.321(b)(1).  The
benefit-of-the-doubt doctrine is inapplicable, since the
preponderance of the evidence is against allowance of this
appellate issue, for the aforestated reasons.

ORDER

Entitlement to secondary service connection for
diverticulosis is denied.

Entitlement to an evaluation in excess of 30 percent for
anxiety neurosis is denied.

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

 Department of Veterans Affairs


judge_norm: DEREK R BROWN

disposition: remanded

text:
Citation Nr: 0530000
Decision Date: 11/09/05    Archive Date: 11/30/05

DOCKET NO.  99-22 293	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey

THE ISSUES

1.  Entitlement to restoration of a 20 percent rating for
temporomandibular joint (TMJ) syndrome for the period from
October 1, 1999 to August 15, 2000.

2.  Entitlement to an increased disability rating for
residuals of a back injury, currently evaluated as 40 percent
disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Thomas H. O'Shay, Counsel

INTRODUCTION

The veteran had military service from November 1997 to
January 1998.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of July 1999 and December 1999 rating
decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey.

The July 1999 rating decision from which the restoration
issue originates reduced the evaluation assigned the
veteran's TMJ syndrome from 20 percent to 10 percent
disabling.  The veteran disagreed with the decision in July
1999, arguing that she was entitled to restoration of the 20
percent evaluation.  She did not contend at that time, or at
any other time since, that she is entitled to an increased
rating for the disorder.  During the pendency of her appeal
of the restoration issue, the RO in September 2000 increased
the evaluation assigned the TMJ syndrome to 40 percent,
effective August 16, 2000.  She has not expressed
disagreement with the 40 percent rating, or with the August
2000 effective date assigned the rating.

From the above, the Board finds that the only issue developed
for appellate review with respect to the TMJ disability is
that of entitlement to restoration of a 20 percent evaluation
for TMJ syndrome for the period from October 1, 1999 to
August 15, 2000.

The Board also notes that while the issue of entitlement to a
total disability rating based on individual unemployability
due to service-connected disabilities was developed for
appellate review, the veteran withdrew her appeal of that
issue in July 2005.

The issue of entitlement to an increased disability rating
for residuals of a back injury 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.

FINDING OF FACT

The evidence of record at the time of the July 1999 rating
decision reducing the evaluation for the veteran's TMJ
syndrome to 10 percent failed to demonstrate that the
disability was no longer productive of limited
temporomandibular motion with an inter-incisal range between
21 and 30 millimeters (mm.).

CONCLUSION OF LAW

The criteria for restoration of a 20 percent rating for TMJ
syndrome have been met.  38 U.S.C.A. � 1155 (West 2002);
38 C.F.R. �� 3.105(e), 3.344(c), 4.1, 4.10, 4.150, Diagnostic
Code 9905 (2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub.
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a
duty to provide an appropriate claim form, instructions for
completing it, and notice of information necessary to
complete the claim if it is incomplete.  38 U.S.C.A. � 5102
(West 2002); 38 C.F.R. � 3.159(b)(2) (2004).  Second, VA has
a duty to notify the veteran of the information and evidence
needed to substantiate and complete a claim, notice of what
part of that evidence is to be provided by the claimant, and
notice of what part VA will attempt to obtain for the
claimant.  38 U.S.C.A. � 5103(a) (West 2002); Charles v.
Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).  Third, VA has a duty
to assist claimants in obtaining evidence needed to
substantiate a claim.  This assistance includes obtaining all
relevant evidence adequately identified in the record, and in
some cases, affording VA examinations.  38 U.S.C.A. � 5103A
(West 2002); 38 C.F.R. � 3.159 (2004).  Finally, VA has a
duty to notify the veteran that she should submit all
pertinent evidence in her possession.

The Board finds, however, that, inasmuch as 38 U.S.C.A.
� 5103(a) requires VA to notify the veteran of any
information or evidence necessary to substantiate a claim
upon receipt of a complete or substantially complete
application, that provision is not applicable to the rating
reduction claim.  The same is true with respect to the
requirement in 38 U.S.C.A. � 5103(a) that VA advise the
veteran of what evidence she is responsible for obtaining and
what evidence VA will obtain on her behalf.  The record
reflects that in February 1999 the veteran was provided the
notice required by regulation for cases involving the
reduction of a disability rating.

In any event, given the disposition of the veteran's appeal
as discussed in further detail below, any failure to fulfill
any duty to notify and assist the veteran is harmless.

Factual background

Service medical records document TMJ tenderness, as well as
popping with opening or closing of the mouth.

The report of a May 1998 VA general medical examination noted
that the veteran's mouth was slightly limited in its capacity
to open, secondary to jaw pain.  The veteran thereafter
failed to report for her scheduled May 1998 VA dental
examination.

The report of a June 1998 private Magnetic Resonance Imaging
(MRI) study shows that the veteran had anterior irreducible
dislocation of both temporomandibular menisci.

In an October 1998 statement, G. Geldzahler, D.D.S.,
indicated that he first examined the veteran in May 1998 for
jaw pain and a limited ability to open her mouth.  Physical
examination revealed a maximum inter-incisal range of motion
of 25 mm.  He noted that she wore an orthotic without relief
of symptoms.  He indicated that in September 1998, the
veteran underwent a bilateral TMJ surgical arthroscopy.  He
lastly noted that she was attending active physical therapy
with an improving condition.

In November 1998, the RO granted service connection for TMJ
syndrome.  Based on the October 1998 statement by Dr.
Geldzahler, the RO assigned a 20 percent evaluation for the
disorder under 38 C.F.R. � 4.150, Diagnostic Code 9905.  That
diagnostic code provides for a 20 percent evaluation for
limited motion of the temporomandibular articulation, with an
inter-incisal range of 21 to 30 millimeters.  A 10 percent
rating is warranted where the inter-incisal range is from 31
to 40 millimeters.  38 C.F.R. � 4.150, Diagnostic Code 9905.

In December 1998, the veteran attended a VA dental
examination.  The examiner noted that he did not have the
claims file to review.  From the veteran's report, he
indicated that she had undergone arthroscopic jaw surgery in
September 1998 for symptoms including pain with opening her
jaw greater than 20 mm.  The examiner noted that the surgery
was performed with the understanding that a second procedure
might be required in the future.  The veteran explained that
after the arthroscopic surgery she was able to open her mouth
to 40 mm.  She indicated that she still experienced mostly
left-sided pain with opening and closing of her mouth.

Physical examination disclosed that she had an
"in[t]ermaxillary" measurement of 34 mm., with normal
lateral movements.  Her speech was normal, and she reported
only minimal pain.  There was crepitus in both
temporomandibular joints, but not the severe popping she had
experienced prior to surgery.  The examiner diagnosed TMJ
disorder.  The examiner noted that military and civilian
dentists agreed that additional surgery was probably required
for a chance at full recovery.

In January 1999, the RO proposed to reduce the evaluation
assigned the TMJ syndrome from 20 percent to 10 percent
disabling, based on the December 1998 examination report.
The RO described the criteria for 10 percent versus 20
percent ratings under Diagnostic Code 9905.  The RO explained
that a reduction was warranted based on her statement that
she could open her mouth to 40 mm.  The veteran was advised
of the proposed reduction in a February 1999 correspondence;
the correspondence informed her that she had 60 days in which
to submit medical or other evidence showing why the reduction
should not be implemented.  She was also advised of her right
to a pre-reduction hearing.

No communication was received from the veteran or any
representative until July 1999, following the July 1999
rating decision which implemented the reduction, effective
October 1, 1999.

In the July 1999 correspondence referenced above, the veteran
argued that her 20 percent rating should not have been
reduced because she still had constant jaw pain, and also in
light of her physician's belief that her condition had
regressed and warranted consideration of a second operation.
She indicated that the physician advised her that her range
of inter-incisal motion was again very limited, and required
therapy.

VA treatment records covering the period from February to
October 1999 are silent for any TMJ complaints or findings
until after October 1, 1999.

Analysis

Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (2004).  The Board
attempts to determine the extent to which the veteran's
service-connected disabilities adversely affect her ability
to function under the ordinary conditions of daily life, and
the assigned ratings are based, as far as practicable, upon
the average impairment of earning capacity in civil
occupations.  38 U.S.C.A. � 1155; 38 C.F.R. �� 4.1, 4.10.

The record reflects that the RO has complied with the due
process requirements of 38 C.F.R. � 3.105(e) in its reduction
of the evaluation for TMJ syndrome from 20 percent disabling
to 10 percent disabling.  With respect to whether the
evidential requirements for reducing the evaluation have been
met, the Board notes that the provisions of 38 C.F.R.
� 3.344(a) (2005), regarding stabilization of disability
ratings, are not for application, since the veteran's 20
percent evaluation had not been in effect for a period of
five years or more.  The 20 percent evaluation was in effect
from January 29, 1998, until the reduction effective October
1, 1999.  Accordingly, reexaminations disclosing improvement
in the disability at issue will warrant reduction in rating.
38 C.F.R. � 3.344(c).

Although the December 1998 VA examination arguably
demonstrated some improvement in the TMJ syndrome, inasmuch
as there was decreased crepitus and pain on examination, the
examiner failed to identify the inter-incisal range in the
veteran's temporomandibular articulation, and instead
provided the intermaxillary range.  The December 1998
findings were not pertinent to the criteria in Diagnostic
Code 9905.  The Board notes further that while the RO's July
1999 decision did not rely on the intermaxillary range
reported by the examiner, it inappropriately relied on the
appellant's own assessment of her inter-incisal range.  As a
layperson, however, her estimate of the inter-incisal range
does not constitute competent medical evidence.  Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).  Her self assessment of
the severity of her TMJ syndrome was not an adequate basis on
which to reduce her disability rating.

Moreover, to the extent she was merely reporting what Dr.
Geldzahler had told her, her account of what Dr. Geldzahler
purportedly said about the inter-incisal range, filtered
through the sensibilities of a layperson, does not constitute
competent medical evidence.  See Robinette v. Brown, 8 Vet.
App. 69 (1995).  While dental treatment records from Dr.
Geldzahler might have provided a medical basis to reduce the
evaluation assigned the TMJ disorder, the RO did not attempt
to secure any such records, despite the October 1998
statement indicating that the veteran was participating in
physical therapy.

The Board further notes that the December 1998 VA examination
was conducted without a review of the claims file.  See
Tucker v. Derwinski, 2 Vet. App. 201 (1992) (reversing VA's
reduction of an appellant's schedular rating based on
examination report which did not include a review of the
claims folder by the examiner).  The Board, of course,
acknowledges that there was no evidence since October 1998
for the examiner to review.

Following the July 1999 rating decision, but before the
reduction took effect, the veteran reported that she was
recommended for further jaw surgery based on a regression in
her condition.  Again, no attempt was made to obtain any
dental treatment records for the period prior to October
1999.

In short, the reduction in the rating assigned the TMJ
syndrome was based on the veteran's lay report of her inter-
incisal range, and not on any reexamination disclosing
improvement.  The medical examination moreover neither
provided findings as to her inter-incisal range, nor included
a review of the claims file.  Given the above, as well as the
RO's failure to obtain pertinent dental treatment records,
the Board finds that the evidence of record at the time of
the July 1999 rating decision did not establish that the
veteran's TMJ syndrome was no longer productive of limited
motion of temporomandibular motion with an inter-incisal
range of between 21 and 30 mm., or that the disorder
otherwise had improved as to warrant a reduction in rating.
Accordingly, the Board concludes that restoration of the
veteran's 20 percent evaluation is warranted.

As noted in the Introduction, there is no indication in the
current record that the veteran has alleged that her TMJ
syndrome for the period prior to August 16, 2000, was more
than 20 percent disabling.  The Board consequently has
determined that a remand to obtain other potentially relevant
records is not warranted.

ORDER

The 20 percent rating for temporomandibular joint syndrome is
restored, effective from the date of the reduction until
August 15, 2000.

REMAND

The veteran contends that the evaluation currently assigned
her back disability does not accurately reflect the severity
of the disorder.

The Board initially notes that while she arguably has been
provided notice of the information and evidence necessary to
substantiate her increased rating claim, she has not been
advised of what evidence she is responsible for submitting
and of what evidence VA will obtain on her behalf.  See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  In
this regard, the Board notes that the VCAA letter issued in
June 2004 was limited to unrelated issues.  The Board will
therefore remand this case in order to provide the veteran
with the notice to which she is entitled under the VCAA.

In addition, the record suggests that there are VA treatment
records pertinent to the increased rating issue which remain
outstanding.  VA treatment records on file for February 1999
to March 2003 include a March 2001 entry noting that the
veteran would be scheduled for a neurosurgical evaluation,
including MRI and X-ray studies of the lumbosacral spine.
The results of the evaluation and studies are not on file.  A
March 2003 VA examiner made reference to findings from a May
2001 MRI study of the lower back, but the report of any such
MRI is also not of record.

Given the apparent incompleteness of the VA medical records
on file, the Board will also remand the case to ensure that
all pertinent medical records have been obtained.

The veteran is hereby notified that it is her responsibility
to report for all examinations and to cooperate in the
development of the claim, and that the consequences for
failure to report for a VA examination without good cause may
include denial of the claim.  38 C.F.R. �� 3.158, 3.655
(2005).  In the event that the veteran does not report for
any ordered examination, documentation should be obtained
which shows that notice scheduling the examination was sent
to the last known address.  It should also be indicated
whether any notice that was sent was returned as
undeliverable.

Accordingly, this case is REMANDED to the RO for the
following actions:

1.  The RO should send the veteran
and her representative a letter that
complies with 38 U.S.C.A. � 5103(a)
and 38 C.F.R. � 3.159(b).  The
letter should explain what, if any,
information (medical or lay
evidence) not previously provided to
the Secretary is necessary to
substantiate the claim for an
increased rating for residuals of a
back injury.  The letter should also
specifically inform the veteran and
her representative which portion of
the evidence is to be provided by
the claimant, which part, if any,
the RO will attempt to obtain on her
behalf, and a request that the
veteran provide any evidence in her
possession that pertains to this
claim.  See Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).

2.  The RO should contact the
veteran and request that she
identify the names, addresses and
approximate dates of treatment for
all health care providers, VA and
private, who may possess additional
records pertinent to the remaining
claim on appeal.  With any necessary
authorization from the veteran the
RO should attempt to obtain and
associate with the claims file any
medical records identified by the
appellant which have not been
secured previously.  In any event,
the RO should obtain medical records
(including neurology clinic entries)
for the veteran from the VA Medical
Center in East Orange, New Jersey
for the period from March 2001 to
the present.

3.  If the RO is unsuccessful in
obtaining any records identified by
the veteran, it must inform the
appellant and her representative of
this and afford them an opportunity
to provide a copy of the outstanding
records.

4.  Thereafter, the RO should
arrange for VA orthopedic and
neurologic examinations of the
veteran by physicians with
appropriate expertise to determine
the nature, extent and severity of
the appellant's service-connected
residuals of a back injury.  All
indicated studies, including range
of motion studies in degrees, must
be performed.  In accordance with
the latest AMIE worksheets for back
disorders, the examiners are to
provide a detailed review of the
veteran's pertinent medical history,
current complaints, and the nature
and extent of any lower back
disability.  Tests of joint motion
against varying resistance must be
performed.  The extent of any
incoordination, weakened movement
and excess fatigability on use
should be described.  The physicians
should identify any objective
evidence of pain or functional loss
due to pain.  Any specific
functional impairment due to pain
should be identified, and the
examiners must assess the extent of
any pain.  The physicians must also
express an opinion concerning
whether there would be additional
limits on functional ability on
repeated use or during flare-ups (if
the veteran describes flare-ups),
and, if feasible, express this in
terms of additional degrees of
limitation of motion on repeated use
or during flare-ups.  If this is not
feasible, the physicians should so
state.

The neurologist should specifically
indicate, with respect to any
degenerative disc disease found,
whether the veteran has experienced
incapacitating episodes (i.e.,
periods of acute signs and symptoms
due to an intervertebral disc
syndrome (IVDS) that require
physician-prescribed bed rest and
treatment by a physician) of IVDS
over the past 12 months.  If so, the
neurologist must identify the total
duration of those incapacitating
episodes over the past 12 months.
The neurologist must identify the
signs and symptoms resulting from
IVDS that are constantly present, or
nearly so.  The examiner should also
set forth findings relative to
neurologic impairment evident from
the veteran's IVDS.  Any abnormal
sciatic, peroneal, popliteal or
other nerve findings due to IVDS
should be described in detail and
the degree of paralysis, neuritis or
neuralgia should be set forth (i.e.
mild, moderate, severe, complete).

The examiners should also provide an
opinion as to the impact of the
veteran's back disorder on her
employability.  The rationale for
all opinions expressed should be
explained.  The  claims file must be
made available to and reviewed by
the examiners.

5.  Thereafter, the RO must review
the claims folder and ensure that
the foregoing development actions,
as well as any other development
that may be in order, has been
conducted and completed in full.
The RO should review the examination
reports to ensure that they are in
complete compliance with the
directives of this REMAND.  If the
reports are deficient in any manner,
the RO must implement corrective
procedures at once.

6.  The RO should then prepare a new
rating decision and readjudicate the
issue remaining on appeal.  If the
benefit sought on appeal is not
granted in full the RO must issue a
supplemental statement of the case
and provide the appellant and her
representative an opportunity to
respond.  The RO is advised that
they are to make a determination
based on the law and regulations in
effect at the time of their
decision, to include any further
changes in VCAA and any other
applicable legal precedent.

After the veteran and her representative have been given an
opportunity to respond to the supplemental statement of the
case, and the period for submission of additional information
or evidence set forth in 38 U.S.C.A. � 5103(b) (West 2002)
has expired, if applicable, the case should be returned to
the Board for further appellate consideration, if otherwise
in order.  By this remand, the Board intimates no opinion as
to any final outcome warranted.  No action is required of the
veteran until she is notified by the RO.  The veteran and her
representative have the right to submit additional evidence
and argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

______________________________________________
	DEREK R. BROWN
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: R F WILLIAMS

text:
Citation Nr: 0531000
Decision Date: 11/17/05    Archive Date: 11/30/05

DOCKET NO.  05-12 846	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for post-traumatic
brain tumors and a cerebral aneurism.

2.  Entitlement to service connection for laceration scars on
the head.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel

INTRODUCTION

The veteran served on active duty from October 1955 to
October 1957.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) of
Waco, Texas.

Pursuant to a November 2005 motion and the Board's granting
thereof, this case has been advanced on the Board's docket
under 38 U.S.C.A. � 7107 (West 2002) and 38 C.F.R. �
20.900(c) (2005).

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the veteran
if further action is required on his part.

REMAND

In April 2004, almost 50 years after his separation from
service, the veteran claimed entitlement to service
connection for brain tumors, a cerebral aneurysm and
laceration scars secondary to an alleged in-service head
injury.  He contends that he is entitled to service
connection for the claimed disabilities as stemming from
injuries sustained in an automobile accident in the winter of
1955.  He further states that he was hospitalized at a
military medical facility in Fort Devens.

There are no service medical records in the claims file.  A
review of the record reveals that the RO attempted to obtain
these records but the National Personnel Records Center
(NPRC) has reported that they were apparently destroyed in
the fire that occurred there in 1973.  In a January 2005
decision, based solely on post service medical records,
service connection for the claimed residuals of an alleged
in-service head injury was denied.

Additional evidence has been added since the issuance of the
Statement of the Case in March 2005.  The evidence includes
medical records relating to evaluation and treatment of a
variety of disorders, including a cerebral aneurysm, which is
pertinent to the veteran's claim.  There is no indication
that the RO considered this evidence; the veteran was not
afforded a supplemental statement of the case (SSOC), which
is required by 38 C.F.R. � 19.37 (2005).  The Board further
notes that the veteran has not submitted a written waiver of
his right to have the evidence reviewed by the RO pursuant to
38 C.F.R. � 20.1304 (2005).

The Board also finds that another attempt should be made to
obtain the veteran's service medical records or alternative
records.  The VMC VBA should contact the NPRC, the service
department and any other appropriate records depository to
obtain the veteran's service personnel records and then send
copies of the personnel records to the NPRC, the service
department, any other appropriate records depository, and the
hospital located at Fort Devins, Massachusetts for the
purpose of obtaining any service medical records of the
veteran.

It is pertinent to note that there is a heightened duty to
assist a veteran in substantiating his claim where, as here,
potentially relevant records (that is, service medical
records) have been or are presumed to have been destroyed
while in the government's custody with no fault on the
veteran's part.  See, e.g., O'Hare v. Derwinski, 1 Vet. App.
365, 367 (1991).

Therefore, to ensure that VA has met its duty to assist the
veteran in developing the facts pertinent to the claim and to
ensure full compliance with due process requirements, the
case is REMANDED for the following development:

1.  The RO should obtain the veteran's
complete service personnel records and
contact the veteran and ask him for his
complete organization unit assignment
(i.e., squad, group, or wing) at the time
that he went on sick call or when he was
hospitalized.  Using the information
provided by the veteran, if any, and any
service personnel records that are
obtained, the RO should then perform
another search with the NPRC, the service
department, and the hospital at Fort
Devens to search for service medical
records; morning and sick call reports,
and/or reports from the Surgeon General's
Office.  If no additional governmental
records from any source are located, the
veteran should be so notified.

2.  The RO should also ask the veteran to
provide names, addresses and approximate
dates of treatment for all health care
providers who may possess additional
records pertinent to his claim on appeal.
The RO should furnish the veteran the
appropriate release of information forms
in order to obtain copies of any post-
service private medical records, which
may be available.  The RO should then
attempt to obtain all post-service
medical records relating to evaluation or
treatment for residuals of a head injury
that are not already included in the
claims folder.  Of particular interest
are those medical records for the time
period immediately following the
veteran's release from active duty until
the present.  The RO should pursue all
logical follow-up development pertaining
to diagnosis of, and treatment for brain
tumors, an aneurysm or head lacerations.

3.  If and only if the RO obtains
relevant service or post-service medical
records supporting the veteran's claim,
the veteran should be scheduled for a VA
examination in order to determine whether
he currently has a brain tumor, an
aneurysm, a scar, or any other disability
linked to the alleged in-service head
trauma.  Following a review of the
relevant evidence in the claims file, the
medical history, the clinical evaluation,
and any tests that are deemed necessary,
the examiner is asked to opine whether
the veteran has a current brain tumor,
aneurysm or head laceration scar and, if
so, whether it is at least as likely as
not (50 percent or greater probability),
that any such disability is the residual
of a head injury or some other condition
attributable to the veteran's military
service.

4.  Thereafter, the RO should review the
claims file and ensure that no other
notification or development action, in
addition to that directed above, is
required.  If further action is required,
the RO should undertake it before further
adjudication of the claim.

5.  The RO should readjudicate the claims
by evaluating all evidence obtained after
the March 2005 statement of the case was
issued.  If any benefit sought on appeal
remains denied, the RO must furnish the
veteran and his representative an
appropriate SSOC and allow them a
reasonable period of time to respond.
The SSOC must contain notice of all
relevant actions taken on the claims for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal, including
VCAA and any other legal precedent.

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

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

_________________________________________________
R. F. WILLIAMS
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) (2005).