judge_norm: TRESA M SCHLECHT

condition: gi

condition: headache

text:
Citation Nr: 1305000
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  06-13 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUES

1.  Entitlement to service connection for gastrointestinal problems, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness.

2.  Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness.

3.  Entitlement to service connection for skin rash, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness.

4.  Entitlement to service connection for headaches, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness.

REPRESENTATION

Veteran represented by:	The American Legion

ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from October 1986 to February 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana that, in relevant part, denied the Veteran's claims set forth above.

In his April 2006 substantive appeal, the Veteran requested a hearing before the Board at a local regional office.  In February 2007, the Veteran withdrew this request in writing and, since that time, he has not requested an additional hearing before the Board.  The Veteran's request for a hearing is therefore considered withdrawn.  See 38 C.F.R. � 20.704 (2012).

This matter has previously been before the Board, most recently in April 2012, when it remanded the case to develop the medical evidence of record and ensure that the RO had taken appropriate steps to ensure both the completeness of the Veteran's claims file and that VA had the Veteran's correct address on file.  Specifically with regard to the medical evidence of record, the Board instructed the RO to attempt to obtain additional medical records and to provide the Veteran with VA examinations of his conditions.  As will be discussed in further detail below, the RO uploaded pertinent medical records to the Veteran's Virtual VA e-folder, and the Veteran was provided with examinations of his conditions in August 2012.  As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In the instant case, the Board finds that there has been effective compliance with the Board's remand instructions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.)

As the Board noted in its April 2012 Remand, in January 2012, the Veteran's representative raised the issue of entitlement to an effective date prior to July 5, 2006, for the grant of service connection for myalgia and myositis, claimed as muscle and joint pain, including based on clear and unmistakable error in the May 2007 rating decision.  This issue, however, has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.

FINDINGS OF FACT

1.  The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War.

2.  The Veteran's gastrointestinal problems are a known clinical diagnosis and are not attributable to undiagnosed illness or an unexplained chronic multisymptom illness or otherwise related to the Veteran's active duty service.

3.  The Veteran's sleep apnea is a known clinical diagnosis and is not attributable to undiagnosed illness or an unexplained chronic multisymptom illness or otherwise related to the Veteran's active duty service.

4.  A known clinical diagnosis, acne, is assigned for the Veteran's claimed skin rash, and no skin disorder is attributable to an undiagnosed illness or an unexplained chronic multisymptom illness or otherwise related to the Veteran's active duty service.

5.  The Veteran's headaches are a known clinical diagnosis and are not attributable to undiagnosed illness or an unexplained chronic multisymptom illness or otherwise related to the Veteran's active duty service.
CONCLUSIONS OF LAW

1.  The Veteran does not have gastrointestinal problems as the result of disease or injury incurred in or aggravated by active military service, and such condition may not be presumed to have been due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  See 38 U.S.C.A. �� 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.317 (2012).

2.  The Veteran does not have sleep apnea as the result of disease or injury incurred in or aggravated by active military service, and it may not be presumed to have been due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  See 38 U.S.C.A. �� 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.317 (2012).

3.  The Veteran does not have a skin rash as the result of disease or injury incurred in or aggravated by active military service, and it may not be presumed to have been due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  See 38 U.S.C.A. �� 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.317 (2012).

4.  The Veteran does not have headaches as the result of disease or injury incurred in or aggravated by active military service, and such condition may not be presumed to have been incurred in service or presumed as due to an undiagnosed illness or an unexplained chronic multisymptom illness incurred in service.  See 38 U.S.C.A. �� 1110, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.317 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

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

Duty to Notify and Assist

The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits.  See 38 U.S.C.A. �� 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. � 3.159 (2012).  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims.  See 38 U.S.C.A. �� 5103, 5103A (West 2002 & Supp. 2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See id. at 486.  Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

In the instant case, correspondence dated December 2004, March 2006, and May 2007 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The Veteran filed his claim prior to the Court's 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the initial December 2004 VCAA letter.  Instead, in March 2006, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date.  Additionally, since the time of the March 2006 Dingess notice, the Veteran has been provided with several readjudications of his claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice.  The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary.

With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. � 5103A (West 2002) and 38 C.F.R. � 3.159(c) (2012).  Service treatment records have been associated with the claims file.  All identified and available post-service treatment records have been secured, which include VA treatment records.  Additionally, the Veteran was provided with VA examination.  The examination reports indicate that the examiners reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report is adequate for the purposes of rendering a decision in the instant appeal.  See 38 C.F.R. � 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Neither the Veteran nor his representative has contended otherwise.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  See 38 C.F.R. � 3.159(c)(4).  The records satisfy 38 C.F.R. � 3.326.

In this regard, the Board notes that the Veteran's service medical records could not be obtained from the National Personnel Records Center (NPRC).  The Veteran's claims file indicates that these records are not available, since the Veteran's original claims file was lost.  In May 2012, pursuant to the Board's April 2012 Remand directive, the NPRC confirmed that all available service treatment records had been provided for the Veteran.  The Board recognizes its heightened duty to explain its findings and conclusions and to consider benefit of the doubt and corroborative testimony such as buddy statements in cases in which records are unavailable.  See O'Hare v. Derwinski, 1 Vet. App. 365 (1991).  Additionally, as will be discussed in further detail below, the Veteran has not specifically alleged that he received treatment for any of the above disabilities in service.  Accordingly, the Board finds that the lack of service treatment records is minimally prejudicial to the Veteran in the instant case.

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant).

Presumptive Service Connection, Qualifying Chronic Disability

Service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011.  See 38 U.S.C.A. � 1117 (West 2002 & Supp. 2012); 38 C.F.R. � 3.317 (2012).  Unlike service connection on a direct basis as discussed below, the provisions of 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317 do not require competent medical nexus of a link between the qualifying chronic disability and military service.  Service connection is presumed unless there is affirmative evidence to the contrary.  See 38 C.F.R. � 3.317(c) (2012); Gutierrez v. Principi, 19 Vet. App. 1 (2004).

The term "Persian Gulf Veteran" means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations, which includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  See 38 C.F.R. � 3.317(d) (2012).  For purposes of � 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. � 1117(d) warrants a presumption of service connection.  38 C.F.R. � 3.317(a)(2) (2012).  An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis.  Further, laypersons are competent to report objective signs of illness.  See Gutierrez v. Principi, 19 Vet. App. 1 (2004).

A medically unexplained chronic multi-symptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome.  A medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  See 38 C.F.R. � 3.317(a)(2).

There are currently no diagnosed illnesses that have been determined by the Secretary to warrant a presumption of service connection under 38 C.F.R. � 3.317(a)(2)(C) (2012).

Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  See 38 C.F.R. � 3.317(a)(3) (2012).  Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following:  (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  See 38 C.F.R. � 3.317(b) (2012).

For purposes of � 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic.  The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  See 38 C.F.R. � 3.317(a)(4) (2012).

Compensation shall not be paid under � 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs.  See 38 C.F.R. � 3.317(c) (2012).

The Veteran's personnel records indicate that the Veteran served in Southwest Asia during the Persian Gulf War, and he received the Southwest Asia Service Medal with three bronze stars.  Thus, the Board finds that the Veteran is a Persian Gulf Veteran for the purposes of 38 U.S.C.A. � 1117 and 38 C.F.R. � 3.317, and he could thus potentially qualify for service connection under 38 C.F.R. � 3.317.  As the Board noted in its May 2010 Remand, however, the Veteran's claimed symptoms have been associated with the known diagnoses of GERD, migraine headaches, obstructive sleep apnea, and acne.  As such, the Veteran's claimed conditions are not undiagnosed illnesses or indicators of unexplained multisymptom illness, and they may not be presumed related to the Veteran's service under provisions applicable to undiagnosed illness or unexplained chronic multisymptom illness.  See 38 C.F.R. � 3.317 (2012).

Although the Board does not doubt the sincerity of the Veteran's belief that he may have disabilities due to undiagnosed illnesses related to his service in Southwest Asia, as a lay person without the appropriate medical training or expertise, he is not competent to provide a probative opinion on a complex medical matter such as the diagnosis or etiology of a current disability, undiagnosed illness, or medically unexplained chronic multi-symptom illness.  The Veteran's medical records, including the opinions of the August 2012 VA examiner, clearly arrive at medical conclusions contrary to the Veteran's claims, specifically attributing the Veteran's claimed symptoms to known clinical diagnoses that are not qualifying illnesses.  See 38 C.F.R. � 3.317 (2012).  The Board relies on the medical treatment providers' opinions in this case as they are based on objective evidence, their medical expertise, and the Veteran's assertions.

In short, the Board finds that the Veteran's claimed symptoms have been fully attributed to clinical diagnoses that are not qualifying chronic disabilities under � 1117.  Thus, the theory that the Veteran has undiagnosed illnesses or a medically unexplained chronic multi-symptom illness or qualifying chronic disability manifested by symptoms that are related to the Veteran's service in Southwest Asia does not have merit.  For all the foregoing reasons, the Board finds that, to the extent that the Veteran's claims for service connection are adjudicated under 38 C.F.R. � 3.317, the claims must be denied.  However, 38 C.F.R. � 3.317 is not the only basis for reviewing service connection, and the Board must consider other possible theories for service connection.

Direct Service Connection

In cases in which a Veteran applies for service connection under 38 C.F.R. � 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. � 1110 is warranted.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Service connection may be awarded for a "chronic" condition when a disease defined by statute or regulation as a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. � 3.307), and the Veteran presently has the same condition.  There is a presumption, under 38 U.S.C.A. � 1101, that certain organic disorders of the nervous system manifested to a compensable degree within one year following a Veteran's service discharge are service-connected.  No presumption is applicable to GERD or sleep apnea.  No presumption is applicable to a skin disorder, except with respect to exposure to herbicide agents, and that presumption is not applicable in this case, as the Veteran has no Vietnam service and does not allege exposure to herbicides.

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  38 U.S.C.A. � 1113(b) (West 2002); 38 C.F.R. � 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. � 3.303(b) (2012).

To establish service connection for the Veteran's claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247 (1999).  As noted above, the first Hickson element has been met with respect to each of the Veteran's claimed conditions, that is, he has been diagnosed with GERD, sleep apnea, acne, and headaches.  With respect to the third Hickson element, the relationship, if any, between the Veteran's disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).

1.  Claim for service connection for GERD

With respect to the Veteran's claim for service connection for GERD, the Veteran was provided with a VA examination in August 2012.  After a physical examination of the Veteran and review of the Veteran's claims file, the examiner explained the mechanism by which GERD occurs and noted that risk factors for GERD include obesity, hiatal hernia, smoking, diabetes, delayed stomach emptying, and diet.  The examiner noted that the Veteran was first diagnosed with GERD in 2005, and he first began taking medication in treatment of his GERD in 2006.  The examiner noted that the claims file does not suggest that the Veteran was treated for GERD during his military service.  The examiner observed no chronicity of care for GERD during the period which elapsed between the Veteran's 1993 separation from service and the 2005 medical treatment.

Accordingly, the examiner found it to be less likely than not that the Veteran's GERD was related to the Veteran's active duty service.  The medical opinion is more persuasive than the Veteran's statements.  The medical opinion places the preponderance of the evidence against the claim.

2.  Claim for service connection for sleep apnea

With respect to the Veteran's claim for service connection for sleep apnea, the Veteran claimed in an April 2008 examination that he first experienced symptoms associated with sleep apnea in 1995.  While the Board acknowledges the competency of the Veteran to make such an observation, the Board finds that it is not supported by the medical evidence of record; indeed, there are no medical records diagnosing the Veteran with sleep apnea until 2005.  The Board therefore affords the Veteran's allegation of a 1995 onset of sleep apnea with little probative weight.  The Board further notes that, since the Veteran's service separation was in 1993 and the onset of symptoms, as reported by the Veteran, was in 1995, the Veteran's report does not establish continuity and chronicity of symptoms beginning during the Veteran's service or proximate thereto.  The Board further notes that sleep apnea is not identified by statute or regulation as a chronic disease for which service connection may be presumed if the disorder is manifested within the presumptive period.

The Veteran was provided with a VA examination of his sleep apnea in August 2012.  After a physical examination of the Veteran and review of the Veteran's claims file, the examiner noted the mechanism by which sleep apnea occurs and noted that risk factors include a lower jaw that is short compared to the upper jaw, certain shapes of the palate or airway that cause the airway to be narrower or collapse more easily, large tonsils and adenoids, large neck or collar size, a large tongue, and obesity.  The examiner observed no complaints of sleep apnea in the record until 2005, at which time the Veteran was diagnosed with sleep apnea following a sleep study.  The Veteran then began receiving treatment for this condition in 2006.  The examiner observed no chronicity of care for sleep apnea between separation from service and 2005.  Accordingly, the Veteran found it to be less likely than not that the Veteran's sleep apnea was related to the Veteran's active duty service.  The medical opinion is more persuasive than the Veteran's statements.  The medical opinion places the preponderance of the evidence against the claim.

3.  Claim for service connection for a skin disorder

With respect to the Veteran's claim for service connection for a skin condition, the Veteran was provided with a VA examination in August 2012.  After a physical examination of the Veteran and review of the Veteran's claims file, the examiner noted that the Veteran reported that he started having acne breakouts during his military service in 1992.  The examiner observed no records suggesting that the Veteran received care for acne in service, and no records suggesting that the Veteran began receiving treatment for acne soon after his separation from service.  Instead, the Veteran was first examined for intermittent acne breakouts in 2005.  The examiner observed no chronicity of care for acne between separation from service and 2005.  Accordingly, the Veteran found it to be less likely than not that the Veteran's skin condition was related to the Veteran's active duty service.

The medical opinion is more persuasive than the Veteran's statements.  The medical opinion places the preponderance of the evidence against the claim.

4.  Claim for service connection for headaches

With respect to the Veteran's claim for service connection for headaches, an April 2008 examination largely addressing miscellaneous neurological disorders noted that the date of onset for the Veteran's headaches was "unclear."  The examiner noted that the Veteran stated that he got headaches "frequently after the war," and he remembered experiencing headaches while in service.  The examiner indicated that it would be purely speculative to opine regarding the etiology of the headaches, but he also noted that migraines are usually idiopathic or genetic.

In a separate April 2008 examination, the Veteran claimed that he first experienced symptoms associated with headaches in 1995 or since returning from deployment during active service.  While the Board acknowledges the competency of the Veteran to make such an observation of the date of onset of his headaches, the Board finds that such observation is not supported by the medical evidence of record; indeed, there are no medical records diagnosing the Veteran with headaches until 2005.  The Board therefore affords the Veteran's allegation of a 1995 or earlier onset of headaches with little probative weight.

The Veteran was provided with a VA examination of his headaches in August 2012.  After a physical examination of the Veteran and review of the Veteran's claims file, the examiner noted that the Veteran's claims file contained no documentation of treatment for or complaints of headaches in service.  Instead, the Veteran was first examined for headaches in 2005.  The Veteran reported that he was stared on an anti-inflammatory medication to treat his headaches in 2006, but he quit taking the medication and currently took only over-the-counter aspirin as needed.  The examiner observed no chronicity of care for acne between separation from service and 2005.  Accordingly, the Veteran found it to be less likely than not that the Veteran's headaches were related to the Veteran's active duty service.

The medical opinion is more persuasive than the Veteran's statements.  The medical opinion places the preponderance of the evidence against the claim.

Summary

Upon review of this evidence, the Board finds that VA examiners have consistently been unable to link the Veteran's claimed disabilities with his active duty service.  To the extent that the Veteran himself believes that his disabilities are related to his military service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms associated with each of his claimed disabilities).  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Indeed, VA provided the Veteran with examinations based on the competency of these observations.

A layperson is generally not deemed competent, however, to opine on a matter that requires medical knowledge, such as the determination of etiology of a chronic disability which is not susceptible to lay observation.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Board has reviewed the Veteran's VA treatment records for any suggestion that his current disabilities are related to military service and has found none.  Accordingly, with no support in the medical evidence of record that the Veteran's disabilities are related to his military service, the Board places little probative weight on the Veteran's lay opinion regarding the etiology of his condition.

The Board notes that certain neurologic disorders, if manifesting within one year following service, may be presumed service-connected.  However, the evidence shows that the Veteran's claimed headaches did not manifest to a level which required medical attention within one year following his service discharge.  This evidence demonstrates that headaches were no manifested to a compensable degree within one year following separation from service.

In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claims for direct service connection and for service connection under � 1117 for a disability manifested by gastrointestinal problems, sleep apnea, skin rash, and headaches.  Therefore, the claims must be denied.  See 38 U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

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ORDER

Service connection for gastrointestinal problems, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness, is denied.

Service connection for sleep apnea, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness, is denied.

Service connection for skin rash, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness, is denied.

Service connection for headaches, to include as due to an undiagnosed illness or an unexplained chronic multisymptom illness, is denied.

____________________________________________
TRESA M. SCHLECHT
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: WAYNE M BRAEUER

disposition: remanded

text: Initially, the Board notes that any outstanding VA treatment records, dated from September 2009 to the present, should be associated with the Veteran's claims file, either physically or electronically. A review of the Veteran's electronic file reflects no additional records since September 2009. [is remanded]

text:
Citation Nr: 1306000
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  11-26 258	)	DATE
	)
	)

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

THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disability, and if so, whether service connection is in fact warranted.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel
INTRODUCTION

The Veteran had active service from August 1966 to August 1969.  The Veteran is a recipient of the Purple Heart.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, declining to reopen the claim of entitlement to service connection for a left knee disability.

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in January 2013.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.

To establish jurisdiction over this issue, the Board must first consider whether new and material evidence has been submitted to reopen the claim.  See 38 U.S.C.A. �� 5108, 7105 (West 2002 & Supp. 2012).  The Board must proceed in this fashion regardless of the RO's actions.  See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92.  As discussed fully under the analysis section, new and material evidence has been submitted to reopen the claim.

The issue of entitlement to service connection for a left knee disability 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.  The November 2006 rating decision declining to reopen the claim of entitlement to service connection for a left knee disability was not appealed and is final.

2.  Evidence received since the November 2006 rating decision is new and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW

1.  The November 2006 rating decision declining to reopen the Veteran's claim of entitlement to service connection for a left knee disability is final.  38 U.S.C.A. � 7104 (West 2002); 38 C.F.R. � 20.1100 (2012).

2.  New and material evidence has been received and the claim of entitlement to service connection for a left knee disability is reopened.  38 U.S.C.A. �� 5107, 5108, 7105 (West 2002); 38 C.F.R. � 3.156 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  In this case, by reopening the Veteran's claim, the Board is granting in full this aspect of the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

Relevant Laws and Regulations

Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.  38 C.F.R. � 20.200.  Rating actions from which an appeal is not timely perfected become final.  38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103.  In general, Board decisions which are unappealed become final.  38 U.S.C.A. � 7104; 38 C.F.R. � 20.1100.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. � 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

New evidence means existing evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).

The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. � 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. � 5108 requires only new and material evidence to reopen).

Shade further holds that 38 C.F.R. � 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]"  Id.  Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim.  Id.  Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.  Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The Court has elaborated on what constitutes "new and material evidence."  New evidence is not that which is cumulative of other evidence already present in the record.  In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial.  Evans v. Brown, 9 Vet. App 273, 283 (1996).  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans, 9 Vet. App. at 273.

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Facts and Analysis

For historical purposes, the Veteran previously filed a claim of entitlement to service connection for a left knee disability in August 1992.  This claim was denied in an October 1992 rating decision.  The Veteran did not appeal this decision and it became final.

In October 2004, VA received a claim from the Veteran seeking to reopen his claim of entitlement to service connection for a left knee disability.  This claim was subsequently denied in an October 2005 rating decision.  Additional evidence was received in December 2005, and in a January 2006 rating decision, the RO reopened the claim of entitlement to service connection for a left knee disability.  However, the claim was again denied because there was no evidence to show that this condition was incurred in or aggravated by military service.  The Veteran did not appeal this decision or submit additional evidence, and it too became final.  Therefore, for the evidence to be material in this case, it must address this unestablished fact.

With that having been said, the Board finds that evidence sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a left knee disability has been submitted.  VA most recently received a claim to reopen his previously denied claim of entitlement to service connection for a left knee disability in April 2009.  He subsequently submitted a statement dated May 2008 from a private physician with the initials M.A.W.  According to Dr. W, he could not "state with any degree of medical certainty that [the Veteran's] current disability is not a result of" his injury in Vietnam.  While this statement is far from decisive, it at least suggests a possibility between the Veteran's current disability and military service.  This evidence, taken together with the confirmed in-service injury and the currently diagnosed disability, could at least trigger the duty to assist by providing a medical opinion.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The statement of Dr. W certainly suggests that there "may" be a nexus between the Veteran's current left knee disability and his in-service injuries.

In addition, the Veteran provided testimony in support of his claim in January 2013.  The Veteran testified that his knee continued to bother him while in the Army and that it bothered him after he left the Army.  However, he did not report this issue because many things were bothering him at this time and he just wanted to get out of the Army.  As already noted, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus, 3 Vet. App. at 513.  Therefore, this testimony is further evidence to suggest that the Veteran's current knee disability "may" be related to military service.

In summary, medical and lay evidence submitted since the previous rating decision of January 2006 is both new and material, directly relating to an unestablished fact necessary to substantiate the claim.  The claim of entitlement to service connection for a left knee disability is, therefore, reopened.

ORDER

New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened.

REMAND

Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.

Initially, the Board notes that any outstanding VA treatment records, dated from September 2009 to the present, should be associated with the Veteran's claims file, either physically or electronically.  A review of the Veteran's electronic file reflects no additional records since September 2009.

In addition, new evidence submitted by the Veteran triggers VA's duty to assist.  As already noted in the previous section, a VA examination is necessary when:  (1)  there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).

The Veteran's service records confirm that he sustained bruises and abrasions to the left knee in September 1967.  The Veteran has provided testimony to suggest that he continued to be bothered by his knee, at least on an intermittent basis, for the remainder of his Army career and following his separation from active duty.  Current VA treatment records reflect that the Veteran suffers from degenerative joint disease of the left knee and meniscal tears of the left knee.  According to Dr. W's May 2008 statement, he could not state with any degree of medical certainty that these current disabilities were not related to the Veteran's in-service injuries.  As such, the McLendon criteria have been satisfied and a VA examination is necessary before appellate review may proceed on this matter.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment records for the Veteran dated from September 2009 to the present.  Any response received should be noted in the Veteran's claims file.

2.  Thereafter, the Veteran should be scheduled for a VA examination before an appropriate specialist regarding his left knee disability(s).  The Veteran's claims file and a copy of this remand must be reviewed by the VA examiner and the examination report should reflect that these items were in fact reviewed.  The VA examiner is asked to perform all indicated tests and studies and identify the proper diagnosis(es) associated with the Veteran's left knee.  The VA examiner is then asked to opine as to whether it is at least as likely as not that any diagnosed left knee disability manifested during, or as a result of, active military service.

The Veteran's documented in-service injury of "bruises and abrasions of the left knee," the May 2008 opinion of Dr. W and the lay statements regarding chronic symptomatology must be considered and discussed when formulating an opinion, and a complete rationale must be provided for all opinions rendered.

3.  The agency of original jurisdiction (AOJ) should then carefully review the medical opinion obtained to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry.

4.  The AOJ should then readjudicate the claim on appeal in light of all of the evidence of record.  If the claim remains denied, the AOJ should provide the Veteran with a supplemental statement of the case and afford him a reasonable period of time within which to respond thereto.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2012).

______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL E KILCOYNE

disposition: denied

condition: respiratory

text:
Citation Nr: 1307000
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  10-01 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1.  Entitlement to service connection for a left shoulder disability.

2.  Entitlement to service connection for a right shoulder disability.

3.  Entitlement to service connection for a left knee disability.

4.  Entitlement to service connection for a right knee disability.

5.  Entitlement to service connection for a back disability.

6.  Entitlement to service connection for an acquired psychiatric disorder.

7.  Entitlement to an initial disability rating in excess of 30 percent for bronchial asthma and chronic obstructive pulmonary disease (COPD).

8.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).

ATTORNEY FOR THE BOARD

S. Lipstein

INTRODUCTION

The Veteran served on active duty from November 1940 to December 1945, and from August 1950 to September 1951.

These matters came before the Board of Veterans' Appeals (Board) on appeal from August 2008, April 2009, and December 2009 rating decisions of the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico.  The Board remanded the Veteran's claims in July 2012.

As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board requested that the Veteran undergo VA examinations, which was accomplished.  Therefore, the Board may move forward without prejudice to the Veteran, with respect to the issue decided herein.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

The issues of entitlement to service connection for left shoulder, right shoulder, left knee, right knee, back, and acquired psychiatric disorders and entitlement to TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran's bronchial asthma and COPD has not manifested in a showing of Forced Expiratory Volume (FEV)-1 of 55 percent or less of the predicted value, or the ratio of FEV-1/Forced Vital Capacity (FVC) of 55 percent or less; and the Veteran did not require at least monthly visits to a physican for required care of exacerbations; or intermittent courses of systemic corticosteroids.

CONCLUSION OF LAW

For the entire period on appeal, the criteria for an evaluation in excess of 30 percent for bronchial asthma and COPD have not been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. �� 3.321, 4.96, 4.97, Diagnostic Codes 6604-6602 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000) (codified at 38 U.S.C.A. �� 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. �� 3.102 , 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. � 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473  (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112   (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

In cases, as here, where an increased-rating claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and the claim was subsequently granted and he has appealed a downstream issue such as the initial disability rating assigned, the underlying claim has been more than substantiated, it has been proven, thereby rendering � 5103(a) notice no longer required because its initial intended purpose has been fulfilled.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  Thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a "downstream" issue such as the initial rating assigned for a disability, the notice requirements of 38 U.S.C. �� 5104 and 7105 control as to the further communications with the appellant, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  Id. ; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003).  The Veteran received this required Statement of the Case (SOC) (and Supplemental SOCs (SSOCs)) discussing this downstream element of his claim for a higher initial rating for bronchial asthma and COPD and citing the applicable statutes and regulations.

VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. � 5103A ; 38 C.F.R. � 3.159 (2012).

All relevant post-service treatment records and reports identified by the Veteran have been obtained.  The appellant has not identified any additional relevant records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.

Moreover, the Veteran was afforded VA examinations.  As the reports are based on consideration of the prior medical history and described the disabilities in sufficient detail so that the Board's review of the claims is a fully informed one, the medical examinations are adequate.  Stefl v. Nicholoson, 21 Vet. App. 120, 123 (2007).

As noted above, this case was previously before the Board in July 2012.  In the July 2012 remand, the Board instructed that the Veteran undergo a VA examination.  The Veteran underwent such examination in August 2012.  The directive of the July 2012 remand has thus been accomplished.  As the requested development has been completed, the case may proceed without prejudice to the Veteran.

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

Criteria & Analysis

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7.

In addition, if the Veteran has been diagnosed as having a specific condition and that disability is not listed in the Rating Schedule, the diagnosed condition will be evaluated by analogy to a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous.  38 C.F.R. � 4.20.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. � 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In this case, the Veteran is currently in receipt of a 30 percent evaluation for his service-connected bronchial asthma and COPD pursuant to Diagnostic Code 6604-6602.  Diagnostic Code 6602 provides ratings for bronchial asthma.  FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication, is rated 30 percent disabling.  FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, is rated 60 percent disabling.  A Note to Diagnostic Code 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record.  38 C.F.R. � 4.97.

Diagnostic Code 6604 provides ratings for chronic bronchitis.  FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 56- to 65-percent predicted, is rated 30 percent disabling.  FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling.  38 C.F.R. � 4.97.

The Board notes when rating under DC 6604, pulmonary function tests (PFTs) are required except: (i) When the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required.  38 C.F.R. � 4.96(d)(1).

In most circumstances, VA evaluates PFT results based upon post-bronchodilation results.  If a DLCO (SB) test is not of record, evaluation should be based on alternative criteria as long as the examiner states why the DLCO(SB) test would not be useful or valid in a particular case.

When the PFTs are not consistent with clinical findings, evaluation should generally be based on the PFTs.  Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the pre- bronchodilator values should be used for rating purposes.

In a December 2009 rating decision, service connection was granted for bronchial asthma and a 30 percent disability rating was assigned, effective February 7, 2008.  The Veteran filed a Notice of Disagreement with this rating decision in January 2010.

VA outpatient treatment records dated in September 2007 reflect that pre-bronchodilator PFT findings revealed FEV-1 of 105 percent predicted.

The Veteran underwent a VA examination in April 2008.  The report of any PFT undertaken was not associated with the file, but the Veteran reported easy fatigability and wheezing requiring a medical evaluation.  He stated that the course has been intermittent with remissions.  He reported use of an inhaled bronchodilator and inhaled anti-inflammatory daily.  He denied use of oral steroids, parenteral steroids, antibiotic use, or other immunosuppressive.  He stated that he had asthma attacks 3 or more times per week.  He reported clinical visits for exacerbations as less than weekly but at least monthly.  He stated that he had constant or near constant non-productive cough.  He denied history of hemoptysis.  He reported constant or near constant wheezing.  He reported 4 days of incapacitation in the previous 12 months.

Following physical examination, the examiner diagnosed bronchial asthma.  The examiner stated that this had significant effects on occupation, including poor social interactions, problems with lifting and carrying, lack of stamina, and weakness or fatigue, and that these effects resulted in increased tardiness and increased absenteeism.  The examiner stated that this had no effects on feeding, toileting or grooming; mild effects on bathing; moderate effects on chores, shopping, traveling, and dressing; severe effects on recreation; and prevented sports and exercise.

VA outpatient treatment records dated in February 2009 reflect that the Veteran presented with persistent episodes of intermittent shortness of breath, which mildly improved with treatment with respiratory therapies and steroids.  There are no other post-service treatment records reflecting visits to a physician for required care of exacerbations.

The Veteran underwent another VA examination in July 2010.  It was noted that the Veteran had chronic cough, post nasal drip, chronic rhinitis, and suspected vocal cord dysfunction.  He reported that shortness of breath worsened every day.  He stated that he used the inhaled bronchodilator on a daily basis, but he still had some shortness of breath.  He denied having to be hospitalized or having to visit the emergency room due to asthma.  He stated that he used an inhaled bronchodilator daily.  He denied using oral steroids, parenteral steroids, antibiotic use, or other immunosuppressive treatment.  He denied history of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, and respiratory failure.  He reported one or two clinical visits for exacerbations of asthma per year, as well as one or two acute attacks per year.

Pulmonary Function Tests revealed a pre-bronchodilator of FEV-1 of 91 percent predicted, as well as FEV-1/FVC ratio of 99 percent predicted.  Post-bronchodilator PFT findings revealed FEV-1 of 93 percent predicted, as well as FEV-1/FVC ratio of 95 percent predicted.  The examiner noted that the post-bronchodilator part of the study did not conform to ATS standards for interpretation (but did not otherwise explain this) and commented there was mild obstructive ventilator impairment, moderate air trapping, and increased airway resistance.  The examiner diagnosed COPD and controlled bronchial asthma.  He further indicated there were no effects on occupation, mild effects on traveling and feeding, and moderate effects on chores and shopping.

The Veteran underwent another VA examination in August 2012.  He reported constant shortness of breath, respiratory distress, and productive coughing.  He denied having to be hospitalized or having to visit the emergency room in the past year since being under control with treatment.  He denied the use of oral or parenteral corticosteroid medications.  He reported using daily inhalational bronchodilator therapy and anti-inflammatory medication.  He denied using oral bronchodilators, antibiotics, and oxygen therapy.  The examiner noted that the Veteran did not have respiratory failure.  He denied asthma attacks with episodes of respiratory failure in the previous 12 months.  He stated that he had to be under follow-up every two to three months with the pneumology to avoid severe exacerbations.  He stated that most of his exacerbations are moderate.  He reported that frequency of physician visits for required care of exacerbations over the previous 12 months was less frequently than monthly.

A PFT was performed, and the examiner noted that the results accurately reflected the Veteran's current pulmonary function.  PFT findings revealed FEV-1 of 101 percent predicted, as well as FEV-1/FVC ratio of 97 percent predicted.  The examiner noted that DLCO testing was not performed because it was not indicated in the Veteran's particular case.  The examiner stated that the Veteran's respiratory condition did not impact his ability to work.

As noted above, the Veteran's bronchial asthma and COPD has not manifested in a FEV-1 of 55 percent or less of the predicted value, or a FEV-1/FVC of 55 percent or less.  Moreover, the Veteran did not require at least monthly visits to a physican for required care of exacerbations.  In this regard, the Board notes that the Veteran filed a claim for VA benefits for bronchial asthma in February 2008, and reported clinical visits for exacerbations as less than weekly but at least monthly at the April 2008 VA examination.  However, as noted above, the appellant's records are complete and he has not suggested otherwise, and the only record, in years of treatment records, of a visit to a physician for required care of exacerbations was in February 2009.  Based on the foregoing, the Board finds that the Veteran is not credible to the extent that he reported exacerbations as at least monthly at the April 2008 VA examination.  Additionally, the Veteran did not require intermittent courses of systemic corticosteroids.  In April 2008, July 2010 and August 2012 VA, the Veteran denied the use of oral or parenteral corticosteroid medications.

Based on the foregoing, the Board concludes that an evaluation in excess of 30 percent is not warranted.

Extraschedular evaluation

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. � 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. � 3.321(b)(1) , for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board finds that the rating criteria contemplate the Veteran's bronchial asthma and COPD.  The Veteran's service-connected bronchial asthma and COPD is primarily productive of shortness of breath, wheezing, and coughs, manifestations which are assessed by a PFT and are clearly contemplated in the rating applicable criteria.  The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted.

ORDER

An initial disability rating in excess of 30 percent for bronchial asthma and COPD is denied.

REMAND

An October 2007 statement from the supervisor at the VA dental clinic indicated that the Veteran received physical therapy for degenerative arthritis in the legs, knees, shoulders and hands in 1950 to 1951.  It is not clear as to whether or not this physical therapy was with the VA.  The Veteran should be contacted to clarify if he underwent physical therapy  for his knees and shoulders, either at a VA facility or a non-VA facility, in 1950 to 1951, requiring time off from work.  The records of any such therapy should be sought.

In addition, with regard to the shoulders, knees, and  back claims, the Veteran underwent a VA examination in August 2012.  Following physical examination, the examiner diagnosed degenerative spine disease, degenerative joint disease.  The examiner opined that it is not at least as likely as not that any diagnosed left or right knee, left or right shoulder, and back disorder had its onset in or is otherwise attributable to service, stating as a rationale, "current conditions are due to degenerative arthritis."  It was not made clear, however, why a diagnosis of degenerative arthritis precludes the claimed conditions from being related to service.  Thus, the case should be returned to the examiner for an addendum to the report that will specifically address why a diagnosis of degenerative arthritis precludes the claimed left conditions from being related to service.

Regarding the psychiatric disorder issue, the Veteran underwent a VA psychiatric examination in August 2012, at which no psychiatric diagnosis was found.  This conclusion was apparently supported, at least in part, by the examiner's finding that the Veteran has never been diagnosed with a mental disorder.  It must be observed, however, that a December 2010 treatment record includes an assessment of depression.  The August 2012 VA examination should be supplemented on remand, to account for this entry as to allow a fully informed evaluation of the acquired psychiatric claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. � 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

The adjudication of the Veteran's left shoulder, right shoulder, left knee, right knee, back, and acquired psychiatric claims could greatly affect his claim for TDIU benefits.  Therefore, the Board finds that these issues are inextricably intertwined, and the Veteran's claim for a TDIU must be remanded as well.

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service left shoulder, right shoulder, left knee, right knee, back and acquired psychiatric symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  Obtain relevant VA treatment records from the San Juan VA Medical Center and associated clinics, dating since July 2012.

3.  Contact the Veteran to clarify if he underwent physical therapy, either at a VA facility or a non-VA facility, in 1950 to 1951 for degenerative arthritis.  Records of any such identified treatment should be sought.

4.  Following the completion of the development above to the extent possible, return the claims file to the person who conducted the August 2012 VA orthopedic examination, if available, for clarification of the provided etiology opinion.  If this examiner is not available, arrange for the opinion to be provided by another examiner.  If a new examination is deemed necessary, one should be scheduled.  Following review of the claims folder and relevant electronic VA treatment records, the examiner should explain the basis for the conclusion that the Veteran's diagnosis of degenerative arthritis precludes the incurrence of his shoulder, knee and back disabilities in service.

5.  Following the completion of the development above to the extent possible, return the claims file to the August 2012 VA psychiatric examiner, if available.  If this examiner is not available, arrange for the opinion to be provided by another examiner.  If a new examination is deemed necessary, one should be scheduled.  Following review of the claims folder and relevant electronic VA treatment records, the examiner should note the inclusion of depression in an assessment of the Veteran in December 2010 (and anywhere else it or other psychiatric diagnoses may appear since then in records obtained for this Remand), and provide an addendum to the August 2012 examination report as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran has a psychiatric disability that was caused or aggravated by the Veteran's service-connected bronchial asthma, COPD, or sinusitis?

The examiner is informed that aggravation is defined for this purpose as a chronic worsening of the underlying condition, versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of psychiatric disability present (i.e., a baseline) before the onset of the aggravation.

If the examiner must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond.  The examiner is also requested to provide a rationale for any opinion expressed.

6.  Thereafter, the remaining claims on appeal should be re-adjudicated.  If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case.  After an opportunity to respond has been provided the Veteran, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the 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. 2012).

______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: RONALD W SCHOLZ

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 1308000
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  10-19 421	)	DATE
	)

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boise, Idaho

THE ISSUE

Entitlement to service connection for a cervical spine disability.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel

INTRODUCTION

The Veteran served on active duty from July 1980 to March 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The Veteran testified before the undersigned Veterans Law Judge by videoconference from the RO in January 2013.  A transcript of his testimony is associated with Virtual VA.

FINDING OF FACT

On January 9, 2013, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. � 20.204 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. � 20.204.

In the present case, the Veteran informed the undersigned Veterans Law Judge during his videoconference hearing in January 2013 that he wanted to withdraw his pending appeal on the issue of service connection for a cervical spine disability.  The Veteran's statement is memorialized in the hearing transcript, which is associated with Virtual VA.  The Veteran thereafter confirmed his intention in writing, in a Statement in Support of Claim that was received by the Board on January 22, 2013.

Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

ORDER

The appeal is dismissed.

RONALD W. SCHOLZ
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


disposition: granted

text: The claim for entitlement to DIC under 38 U.S.C. § 1318 is dismissed.

text:
Citation Nr: 1309000
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  09-18 393	)	DATE
	)
	)

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

THE ISSUES

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

2.  Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. � 1318.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

David Gratz, Counsel

INTRODUCTION

The Veteran served on active duty from October 1967 to June 1971, from October 1972 to March 1977, from May 2000 to September 2000, and from August 2005 to November 2006; he had additional service in the Reserves.  He died in May 2007.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

After the May 2011 supplemental statement of the case, the appellant submitted additional evidence; her representative submitted a waiver of Agency of Original Jurisdiction (AOJ) consideration thereof in January 2013.  38 C.F.R. � 20.1304(c) (2012).  Therefore, the Board may properly consider such newly received evidence.

In March 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the claims file.

The Board notes the absence of a marriage certificate in the claims file showing that the appellant and the Veteran were wed.  In her June 2007 claim, the appellant listed their date of marriage as February [redacted], 2007.  However, in a February 2009 letter, the appellant stated that she had been the Veteran's partner for 19 years and had been married to him for two of those years.  Because 38 C.F.R. � 3.54(b)(1) allows for claims for compensation from a surviving spouse who was married to the Veteran before the expiration of 15 years after termination of the period of service in which the disease which caused the Veteran's death was incurred or aggravated, and because that period of service in this case terminated on September 16, 2000, either reported date of marriage would qualify the appellant as a valid claimant.  The appellant is listed as the Veteran's surviving spouse on his official Certificate of Death.  The RO should take such administrative steps as are warranted to procure the marriage certificate showing that the appellant and the Veteran were wed, if necessary.

FINDINGS OF FACT

1.  At the time of the Veteran's death, service connection was in effect for major depressive disorder (rated 50 percent disabling), penile angulation to the left with erectile dysfunction (rated 20 percent disabling), degenerative joint disease (DJD) of the right shoulder and acromioclavicular joint (rated 10 percent disabling), DJD of the left shoulder and acromioclavicular joint (rated 10 percent disabling), DJD of the right hip (rated 10 percent disabling), DJD of the left hip (rated 10 percent disabling), DJD of the left knee with patellar tendonitis (rated 10 percent disabling), DJD of the right knee (rated 10 percent disabling), and tinnitus (rated 10 percent disabling).  The combined evaluation for compensation purposes was 80 percent.  Special monthly compensation pursuant to 38 U.S.C.A. � 1114(k) and 38 C.F.R. � 3.350(a) was also in effect.

2.  On the Veteran's official Certificate of Death, high blood pressure was listed as an underlying cause of death.

3.  The Veteran was first diagnosed with hypertension on August 9, 2001; it was  shown to be manifest to a degree of 10 percent or more within one year of his September 16, 2000, separation from active service; and he was subsequently diagnosed with hypertension in September 2004, August 2006, and February 2007.

4.  The Veteran's active service from May 15, 2000 to September 16, 2000 exceeded 90 days.

CONCLUSIONS OF LAW

1.  The criteria for service connection for the cause of the Veteran's death are met.  38 U.S.C.A. � 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1310, 1312, 5103, 5103A, 5107 (West 2002); 38 C.F.R. � 3.303, 3.307, 3.309, 3.312 (2012).

2.  The claim for Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. � 1318 is dismissed.  38 U.S.C.A. �� 1318, 5103, 5103A, 5107 (West 2002); 38 C.F.R. �� 3.22, 3.102, 3.159 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants the appellant's claim in full.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

The appellant contends throughout the pendency of her claim that the Veteran's death resulted from his service.

To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death.  38 U.S.C.A. � 1310 (West 2002); 38 C.F.R. � 3.312(a) (2012).  To constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death.  38 C.F.R. � 3.312(b) (2012).

To be a contributory cause of death, it must be shown that there were "debilitating effects" due to a service-connected disability that made the Veteran "materially less capable" of resisting the effects of the fatal disease, or that a service-connected disability had "material influence in accelerating death," thereby contributing substantially or materially to the cause of death.  Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. � 3.312(c)(1).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2012).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. � 3.303(d).

In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309.

The Veteran died on May [redacted], 2007.  The Veteran's death certificate listed the immediate cause of death as coronary artery disease and underlying causes as high blood pressure and diabetes mellitus.

At the time of his death, the Veteran's service-connected disabilities included major depressive disorder (rated 50 percent disabling), penile angulation to the left with erectile dysfunction (rated 20 percent disabling), degenerative joint disease (DJD) of the right shoulder and acromioclavicular joint (rated 10 percent disabling), DJD of the left shoulder and acromioclavicular joint (rated 10 percent disabling), DJD of the right hip (rated 10 percent disabling), DJD of the left hip (rated 10 percent disabling), DJD of the left knee with patellar tendonitis (rated 10 percent disabling), DJD of the right knee (rated 10 percent disabling), and tinnitus (rated 10 percent disabling).  The combined evaluation for compensation purposes was 80 percent.

A thorough review of the claims file, including the eight folders of service treatment records, reveals that the Veteran was initially diagnosed with hypertension on August 9, 2001.  Specifically, a clinician at the Landstuhl Regional Medical Center in Landstuhl, Germany, provided the initial diagnosis of hypertension and started the Veteran on Metoprolol, a medication used to treat hypertension.  The Board notes that the clinician also refilled the Veteran's medications for other, previously-diagnosed disorders, including diabetes.

The Board finds that service connection is warranted for the Veteran's hypertension on a presumptive basis.  38 C.F.R. �� 3.307, 3.309.  The August 2001 clinician found that the Veteran's blood pressure was 170/70 (systolic/diastolic).  Because the Veteran's systolic pressure exceeded 160, the Board finds that it was manifest to a degree of 10 percent.  38 C.F.R. � 4.104, Diagnostic Code 7101.  Because the diagnosis was made on August 9, 2001, the Board finds that it was made within one year from the date of termination of his period of service lasting from May 15, 2000 to September 16, 2000.  38 C.F.R. �� 3.307(a), 3.309(a).  Because the Veteran's hypertension was subsequently diagnosed, inter alia, in an August 2006 service treatment record and in September 2004 and February 2007 VA treatment records, the Board finds that it was a chronic condition.  38 C.F.R. � 3.309(a).  Additionally, the Veteran's period of service from May 15, 2000 to September 16, 2000 qualifies for the purpose of finding a presumptive disability because it exceeded 90 days.  38 C.F.R. � 3.307(a)(1).  Finally, the Board finds no evidence to rebut the presumption that the Veteran's hypertension had its onset during his period of service from May 15, 2000 to September 16, 2000.  38 C.F.R. � 3.307(d).

As service connection for hypertension is warranted, it follows that service connection for the cause of the Veteran's death is likewise warranted because high blood pressure was listed as an underlying cause on the Veteran's May 2007 Certificate of Death.  38 C.F.R. � 3.312(b).

DIC benefits are payable under certain circumstances if the service member was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time.  DIC benefits granted to a surviving spouse under 38 U.S.C.A. � 1318 (West 2002) would be paid "in the same manner as if the Veteran's death were service connected."  38 U.S.C.A. � 1318(a) (West 2002).  The Board's above grant of service connection for the cause of the Veteran's death recognizes that the death of the service member was the proximate result of a disease or injury incurred in service.  The Court has indicated that only if an appellant's claim for service connection for the cause of the Veteran's death under 38 U.S.C.A. � 1310 (West 2002) is denied does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. � 1318 (West 2002).  Timberlake v. Gober, 14 Vet. App. 122 (2000).  In light of the grant of service connection for the cause of the Veteran's death, the claim of entitlement to DIC under 38 U.S.C. � 1318 (West 2002) is moot, and this aspect of the appellant's claim is dismissed.

ORDER

Entitlement to service connection for the cause of the Veteran's death is granted.

The claim for entitlement to DIC under 38 U.S.C. � 1318 is dismissed.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs