judge_norm: NICOLE KLASSEN

condition: shoulder

text:
Citation Nr: 1608000
Decision Date: 03/01/16    Archive Date: 03/09/16

DOCKET NO.  12-22 598	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for a right shoulder disability.

REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs

WITNESSES AT HEARING ON APPEAL

Veteran and his wife

ATTORNEY FOR THE BOARD

A. Spector, Counsel

INTRODUCTION

The Veteran served on active duty from January 1963 to February 1965.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claim.  The Veteran filed a Notice of Disagreement with this determination in November 2010, and timely perfected his appeal in August 2012.

The Veteran testified at a video teleconference hearing before the undersigned.  A transcript of this hearing was prepared and has been associated with the claims file.

The Board acknowledges that, following issuance of the Statement of the Case in July 2012, the Veteran submitted additional evidence pertinent to the issue on appeal.  Significantly, however, in April 2015, the Veteran submitted a waiver of RO consideration of this evidence.  Accordingly, a remand to the RO for consideration of this evidence is not necessary and appellate review may continue.  38 C.F.R. �� 19.37, 20.1304 (2015).

FINDING OF FACT

The evidence is at least in relative equipoise as to whether the Veteran has a right shoulder disability that was incurred in service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a right shoulder disability have been met.  38 U.S.C.A. �� 1110, 1131, 1154(b), 5107(b) (West 2014); 38 C.F.R. �� 3.102, 3.303 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

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; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  In light of the Board's decision to grant the Veteran's claim of entitlement to service connection for a right shoulder disability, no further discussion of VA's duties to notify and assist is necessary.

II. Service Connection

The Veteran contends that his right shoulder disability began in-service when he slipped on wax while buffing the floor and hit is clavicle on his bunk.  He has reported that he has continued to have right shoulder pain since that time.  See Board Hearing Tr. at 3.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Generally, to establish entitlement to service connection, there must be competent, credible evidence of: (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Based on a review of the evidence of record, the Board finds that service connection for a right shoulder disability is warranted in this case.

With regard to the first element required for service connection, the record reflects that the Veteran has current right shoulder disabilities of a strain, tendonitis, and mild degenerative arthropathy.  See February 2010 VA examination; March 2011 VA Radiology Report; see also May 2011 VA treatment record.  As such, the first element required for service connection has been established.

Turning to the second element required for service connection, there is competent and credible evidence of record regarding the Veteran's in-service right shoulder symptomatology, as well as treatment for such symptoms.  Specifically, service treatment records reveal that in October 1963, July 1964, and August 1964, the Veteran complained of right shoulder pain.  Although the records do not show a right shoulder diagnosis, it was documented that the Veteran was told to use heat to treat his shoulder pain.  On this record, the Board concludes that the second element required for service connection has also been satisfied.

Turning to the third element of whether there is a nexus, or link, between the current shown disability and service, the Board finds that the evidence of record is at least in relative equipoise.  In making this determination, the Board considered the Veteran's testimony at the March 2015 video teleconference hearing, at which time he noted that he did not remember a physical examination being performed at discharge; he remembered going to Fort Hamilton and just being released.  He reported that, when he left service, he had shoulder pain.  He stated that he went into an apprentice program immediately following service, and after two years, he started doing manual heavy work that caused increased shoulder pain.  He reported that he first saw a doctor (Dr. Kaufman) soon after he was separated from active duty, back in 1965-1966.  The Veteran also reported that he did not believe it was possible to obtain these private treatment records due to the length of time that had passed since treatment.  He stated that his shoulder issue was continuous from his time in service until present.  The Veteran is competent to report right shoulder symptoms he experienced during and after service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).

Additionally, the Veteran submitted an April 2015 lay statement from his prior wife, in which she noted that she could attest to the Veteran's chronic pain condition.  She further stated that the Veteran complained of pain in his right shoulder since the beginning of their courtship and lasting through the duration of their marriage from 1965 through 1981.  She also stated that the Veteran was seen during those years by Dr. Kaufman, who treated him after his discharge for his chronic and constant pain.

Further, the Board acknowledges that there are conflicting medical opinions of record regarding whether the Veteran's right shoulder disability is causally related to his military service.  In support of the Veteran's claim, the Veteran's private doctor of chiropractic, Dr. B.S.W., submitted a September 2015 letter.  In this letter, Dr. B.S.W. stated that based on his review of the March 2011 x-rays of the Veteran's right shoulder and the August 2015 computed tomography (CT), there was degeneration and superiority of the right clavicle shown, likely as a result of an injury sustained during service over 50 years prior that has contributed to his radicular brachial pain and range of motion loss.  Additionally, in an April 2015 letter, the Dr. B.S.W. noted that after reviewing the CT scans and x-rays and reading the Veteran's file, it was his opinion that the auto accident the Veteran was involved in on March 18, 2015, aggravated an old injury that caused him constant pain throughout the past 50 years.  The Board finds these opinions to be probative as to etiology of the Veteran's right shoulder disability, as Dr. B.S.W. reviewed and discussed the Veteran's pertinent medical history, considered his lay statements, and provided a cogent rationale / explanation.

By contrast, at the time of his February 2010 VA examination, the examiner provided the opinion that the Veteran's right shoulder condition was not related to events that occurred in military service.  He also noted that the Veteran was seen on three separate occasions for his right shoulder pain in military service and that there were no significant findings.  Additionally, the examiner stated that the Veteran reported that he did not develop pain until two years after military separation.  Lastly, the examiner stated that the Veteran had never been seen by a medical provider for right shoulder problems.

The Board finds the February 2010 VA examiner's opinion to be less probative than the 2015 opinions of Dr. B.S.W. as to the etiology of the Veteran's right shoulder disability.  Significantly, the February 2010 VA examiner's opinion appears to be based on the fact that there was no documented medical evidence of the Veteran's ongoing medical condition and appears to be based on an inaccurate factual history.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's reports, but instead relied on medical records to provide a negative opinion); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Madden v. Gober, 125 F.3d 1477, 1481 (Fed.Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence).  In this regard, the Board reiterates that the Veteran has provided competent and credible reports that his right shoulder disability first began during service, which he immediately received private treatment for post-service, and that the symptoms of this condition continued since.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (stating that the Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment related to the condition or symptoms).  The Veteran's reports of symptoms and history of treatment were also verified by his previous wife.

Accordingly, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's right shoulder disability had its onset during his period of active service.  Therefore, because the Board concludes that all three elements required to establish entitlement to service connection have been met, the Board finds that service connection for a right shoulder disability is warranted and the claim is granted.  See 38 C.F.R. � 3.303.  Reasonable doubt has been resolved in favor of the Veteran in this matter.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.
ORDER

Service connection for a right shoulder disability is granted.

____________________________________________
NICOLE KLASSEN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: JENNIFER HWA

disposition: denied

condition: hypertension

condition: back

condition: tinnitus

condition: diabetes

text:
Citation Nr: 1609000
Decision Date: 03/07/16    Archive Date: 03/15/16

DOCKET NO.  11-05 149	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for a low back disorder.

3. Entitlement to service connection for bilateral hearing loss.

4. Entitlement to service connection for tinnitus.

5. Entitlement to service connection for diabetes mellitus, type II.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel

INTRODUCTION

The Appellant served during various periods of Active Duty for Training (ACDUTRA) from January 1965 to September 1971 with the United States Army Reserve (USAR).

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

A hearing was held in July 2012 by means of video conferencing equipment with the Appellant in Muskogee, Oklahoma, before the undersigned Acting Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. � 7107(c), (e)(2) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

In December 2014, the Board remanded this matter for additional development, which has been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).

FINDINGS OF FACT

1. The Appellant did not have any full time active duty other than ACDUTRA.

2. The Appellant's hypertension, low back disability, bilateral hearing loss, tinnitus, and diabetes mellitus, type II did not manifest during a period of ACDUTRA and are not due to an injury or disease incurred during a period of ACDUTRA.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension have not been met.  38 U.S.C.A. �� 101, 1110, 1131 (West 2014); 38 C.F.R. �� 3.6, 3.303 (2015).

2. The criteria for service connection for a low back disorder have not been met.  38 U.S.C.A. �� 101, 1110, 1131 (West 2014); 38 C.F.R. �� 3.6, 3.303 (2015).

3. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. �� 101, 1110, 1131 (West 2014); 38 C.F.R. �� 3.6, 3.303 (2015).

4. The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. �� 101, 1110, 1131 (West 2014); 38 C.F.R. �� 3.6, 3.303 (2015).

5. The criteria for service connection for diabetes mellitus, type II have not been met.  38 U.S.C.A. �� 101, 1110, 1131 (West 2014); 38 C.F.R. �� 3.6, 3.303 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

With respect to the Appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2015).

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman 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.  Id. at 486.

The RO's May 2010 letter advised the Appellant of the foregoing elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  This letter also provided the Appellant with notice of the type of information and evidence needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman, 19 Vet. App. at 486.  Accordingly, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal.

In addition, the duty to assist the Appellant has also been satisfied in this case.  His service treatment records as well as identified private and VA medical treatment records have been obtained.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  Pursuant to the Board's December 2014 remand, in January 2015 the RO requested additional information from the Appellant, to include a request for him to provide authorization and release forms for VA to obtain private treatment records.  The RO also ordered and obtained the requested etiology opinions addressing bilateral hearing loss, tinnitus, and diabetes mellitus, type II.  Therefore, the directives in the December 2014 Board remand have been substantially completed.  See Stegall, 11 Vet. App. 268.

Regarding the Appellant's VA examination and opinion reports, in December 2010, the Appellant had a VA audiology examination.  38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  However, in December 2014 the Board found the examination report inadequate for rating purposes because the examiner did not provide adequate rationale in support of the opinion addressing the etiology of bilateral hearing loss.  The etiology of the Appellant's tinnitus was not addressed.  Pursuant to the Board's December 2014 remand order, another VA examination was conducted and an opinion addressing the etiology of the Appellant's hearing loss was obtained in February 2015.  An opinion addressing the etiology of his tinnitus was obtained in October 2015.  Both opinion reports are adequate for rating purposes because the examiner interviewed the Appellant, reviewed the claims file, and provided etiology opinions supported by rationale.

Also pursuant to the Board's December 2014 remand order, an opinion was obtained addressing the etiology of the Appellant's diabetes mellitus, type II.  An addendum opinion was obtained in October 2015.  The opinion with addendum is adequate for rating purposes because the examiner reviewed the claims file and provided an etiology opinion with addendum supported by rationale.

VA examinations were not ordered for the Appellant's hypertension or low back disability because the evidence does not suggest that either disability might have manifested during a period of ACDUTRA or be due to an injury or disease during a period of ACDUTRA.  See McLendon, 20 Vet. App. at 83-86.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

Finally, with respect to the Veteran's July 2012 Board hearing, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims and volunteered his treatment history.  Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2) (2015), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that no further action is necessary.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (requiring that the VLJ who chairs a hearing must comply with 38 C.F.R. � 3.103(c)(2) by fully explaining the issues and suggesting the submission of evidence that may have been overlooked).

II. Service Connection

Generally, to qualify for VA benefits a claimant must be a veteran.  See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits).  The term "veteran" is defined in 38 U.S.C.A. � 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."

In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training (ACDUTRA) in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training (INACDUTRA) during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training.  38 U.S.C.A. � 101(24).

ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C.A. � 101(22)(C); 38 C.F.R. � 3.6(c).  INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C.A. � 101(23); 38 C.F.R. � 3.6(d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C.A. � 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C.A. �� 316, 502, 503, 504, or 505); Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003) (explaining that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor.").

While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status.  Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010).  Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA.  As discussed below, the Appellant has not been found to have been disabled from a disease or injury incurred or aggravated during a period of ACDUTRA; thus, he does not have veteran status for service-connection purposes.

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).

Under 38 C.F.R. � 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  However, 38 C.F.R. � 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. � 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  38 U.S.C.A. � 1101.  With respect to the current appeal, this list includes arthritis, diabetes mellitus, type II, hypertension, and bilateral sensorineural hearing loss.  See 38 C.F.R. � 3.309(a).

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus, type II, hypertension, and/or bilateral sensorineural hearing loss becomes manifest 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 in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. �� 3.307, 3.309 (2015).  However, unless and until veteran status is established for any period of ACDUTRA or INACDUTRA, the presumptions of service connection accorded certain diseases under the pertinent sections of the statute and regulations do not apply.  See Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to appellants whose claims are based only on a period of active duty for training); Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that the presumption of aggravation does not apply to periods of ACDUTRA); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status (citing Biggins, 1 Vet. App. at 478)).

VA adjudicators are directed to assess both medical and lay evidence.  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. � 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").  In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. at 186.

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).

In this case, the Appellant seeks service connection for a low back disability, hypertension, bilateral hearing loss, tinnitus, and diabetes mellitus.  Service personnel records indicate that he served multiple periods of ACDUTRA from January 1965 to September 1971.  The evidence does not show any period of active duty or INACDUTRA.  Therefore, for service connection to be granted for any of his disabilities, the evidence must show he was disabled from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C.A. � 101(21) and (24); 38 C.F.R. � 3.6(a).

A. Hypertension & Spine

In this case, the Appellant has a current diagnosis of hypertension and diagnoses of mild spinal stenosis at L4-5 with severe degenerative joint disease of the spine, anterolisthesis of L4-5, and narrowing of the neural foramen, bilaterally.  Thus, the Appellant has current disabilities.  However, the Board finds no nexus between the hypertension or spine disabilities and his periods of ACDUTRA.

First, there is no indication of hypertension or notation of pre-hypertension in any of the available service treatment records.  As noted above, the presumptions under 38 C.F.R. �� 3.307 and 3.309 do not apply to periods of ACDUTRA.  Thus, it does not matter if the hypertension manifested to a compensable degree within one year of separation from ACDUTRA.  Regardless, the Board points out that private treatment records indicate hypertension manifested in January 2008, more than 36 years after his separation from service.  None of the medical evidence suggests his hypertension manifested during a period of ACDUTRA or due to an injury or disease manifesting during a period of ACDUTRA.

Regarding the spine, the Appellant reported recurrent back pain on a report of medical history form completed in February 1971.  However, the accompanying periodic examination report shows a normal clinical evaluation of the spine.  No disabilities of the spine were observed.  Notably, the Appellant was not serving on ACDUTRA in February 1971.  No treatment records dated during periods of ACDUTRA show treatment of or injury to the spine.  As discussed above, the presumptions under 38 C.F.R. �� 3.307 and 3.309 do not apply.  Thus, it does not matter if degenerative joint disease manifested to a compensable degree within one year of separation from ACDUTRA.  However, the Board observes that the first indication of a spine disorder is located in private treatment records dated in 2013, more than 41 years after separation from service.  In 2013, the Appellant complained of having intermittent low back pain for years.  See Treatment Records, Dr. G.B.K. dated August 5, 2013 and March 25, 2015; Dr. C.W.D. undated Diagnosis History (showing displacement of lumbar intervertebral disc identified July 2013).  Notably, private treatment records from Dr. C.W.D. dated January 2008 through March 2010 do not show complaints of back pain or other symptoms related to the spine.  Further, none of the private treatment records show the Appellant reported having had back pain since his periods of ACDUTRA, that he injured his back during ACDUTRA, or that his current diagnoses are due to a disease that manifested during a period of ACDUTRA.  Moreover, medical providers have not indicated a relationship between current diagnoses of the spine and ACDUTRA.

The Board has considered the Appellant's lay statements, including testimony addressing his hypertension and spine disability.  The Board notes the Appellant testified that he did not have high blood pressure during service.  See Hearing Transcript at 12.  Thus, he does not contend that his hypertension manifested during or due to injury or disease manifesting during a period of ACDUTRA.

The Appellant also testified that he did not injure his back during service but believed his current disabilities might be related to the wear and tear of his duties in service.  Id. at 9.  He indicated that his tailbone had been removed in 1980 and that his doctor noted at the time that he had wear on his low back.  As discussed above, laypersons such as the Appellant are competent to report symptoms and disorders capable of lay observation, such as pain.  However, the Appellant's statements are not competent to demonstrate that any in-service symptoms he experienced were related to his currently diagnosed disabilities of the spine, to include degenerative joint disease, spinal stenosis, or narrowing of the neural foramen, as these processes cannot be readily observed.  See Woehlaert, 21 Vet. App. at 462.  Medical diagnoses and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician.  Here, as he is not a physician or shown to have any pertinent medical training, the Appellant is not considered competent to make a determination that any symptoms he experienced during service are related to his currently diagnosed disabilities.  Davidson, 581 F.3d 1313; Barr, 21 Vet. App. 303.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. � 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

In this matter, the preponderance of the evidence does not show that the Appellant's hypertension or spine disabilities manifested during a period of ACDUTRA or are otherwise related to an injury or disease incurred during a period of ACDUTRA.  The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The appeals are denied.

B. Hearing Loss & Tinnitus

The Appellant seeks service connection for bilateral hearing loss and tinnitus.  First, the Board notes that the Appellant has current diagnoses of bilateral hearing loss and tinnitus.  See VA examination dated December 2010 and Audiological Evaluation from T.O., Au.D., dated July 2012.  However, as discussed below, the preponderance of the evidence weighs against the claims for service connection.

The Board observes that an audiology examination conducted in February 1971, notably not conducted during a period of ACDUTRA, showed hearing loss at 4000 Hz in the left ear.  No other service treatment records or periodic examinations show hearing loss or complaints of hearing loss or tinnitus from January 1965 to September 1971.

In July 2012, T.O., Au.D. conducted an audiological evaluation.  T.O. documented the Appellant's reported history of hazardous noise exposure while serving in the military with the infantry.  It does not appear that the Appellant reported his history of occupational noise exposure that occurred during the same time frame as his periods of ACDUTRA with the USAR.  Regardless, T.O. did not provide an opinion addressing the etiology of the hearing loss and tinnitus.

In light of the hearing loss documented in February 1971, a VA examination was ordered.  In December 2010, the Appellant reported bilateral constant tinnitus that had been present for a long time.  He indicated that he was in the USAR for 6 years and was activated only for basic ordinance school and for the mandatory 2 weeks per year service schedule.  He stated that he was exposed to noise while working on the firing range but noted use of hearing protection.  He also indicated that during and after his time with the USAR, he worked full time in maintenance at a refinery.  Following service he also worked in construction as a pipefitter.  The examiner indicated that the Appellant's occupational history is positive for noise exposure.  Further, the Appellant reported a history of hunting without hearing protection.

In February 2015, VA obtained an etiology opinion addressing the etiology of the Appellant's hearing loss.  The examiner met with the Appellant and during the appointment, the Appellant reported high level noise exposure on the rifle range during his time with the USAR; however, he reported that hearing protection was available and utilized.  He also indicated his belief that his hearing loss may be secondary to an airplane transfer from Fort Worth, Texas, to Lake Charles, Louisiana, on his way to basic training.  He reported that a storm during flight resulted in significant turbulence causing passengers to "hold their ears."  Occupationally, he reported concomitant civilian employment as a roughneck in the oil fields and in construction.  Hearing protection devices were not utilized during this timeframe.  Beginning sometime in 1968, he began working at Sun Oil in maintenance and in the lab; hearing protection devices were utilized "late on" but the specific timeframe was unknown.

Based on the available evidence, including review of the private audiology evaluation and the Appellant's testimony, the examiner found no nexus between the Appellant's hearing loss and periods of ACDUTRA.  The examiner acknowledged the two forms of trauma reported - acoustic and physical.  The examiner opined that the Appellant's hearing loss is less likely than not secondary to barotrauma given the audiometric configuration with loss only at 4000 Hz in the left ear in 1971.  Rather, audiometric configurations related to barotrauma are typical for a low frequency conductive hearing loss.  The examiner stated that the Appellant's configuration is not suggestive of physical trauma but is more suggestive of acoustic trauma and high frequency sensorineural hearing loss.  The examiner found that given the Appellant's current report and his report in December 2010 of use of hearing protection devices during military noise exposure coupled with a significant history of occupational noise exposure without the use of hearing protection devices, the audiometric pattern in the left ear observed in 1971 is more likely than not due to his history of occupational noise exposure and less likely than not due to military noise exposure.  The examiner also noted that the 1971 examination was not conducted during a period of ACDUTRA.  Consequently, the examiner found it less likely than not that the Appellant's hearing loss was incurred in or caused by in-service injury, event or illness.

In October 2015, the examiner provided an addendum opinion addressing the etiology of the Appellant's tinnitus.  She indicated that review of the Appellant's service treatment records yielded no evidence of complaints, diagnosis, or treatment of tinnitus during military service.  She noted that the Appellant was unable to link tinnitus onset to military service.  The examiner opined that given this coupled with his significant history of occupational noise exposure without the use of hearing protection devices, tinnitus is less likely than not due to military noise exposure and more likely than not secondary to his history of occupational noise exposure.

The Board has considered the Appellant's testimony indicating possible injury to his ears during flight and due to noise exposure on the rifle range.  As reported to the VA examiners in 2010 and 2015, the Appellant testified that he had hearing protection during his time on the rifle range.  See Transcript at 3-4.  He testified that after service, he was exposed to noise and sometimes wore hearing protection.  He indicated that he first noticed hearing loss in the last 10 years.  He did not notice any hearing loss during his periods of ACDUTRA.  He indicated that he noticed tinnitus several years before noticing his hearing loss but did not indicate that tinnitus manifested during a period of ACDUTRA.

Based on the foregoing, the Board finds the preponderance of the evidence weighs against the claims for service connection for bilateral hearing loss and tinnitus.  As discussed above, while bilateral sensorineural hearing loss is considered an organic disease of the nervous system and subject to the presumptions under 38 C.F.R. �� 3.307 and 3.309, the presumptions do not apply to periods of ACDUTRA.

Regarding direct service connection, service treatment records do not indicate hearing loss or tinnitus during a period of ACDUTRA.  While the February 1971 audiology examination indicates hearing loss in the left ear at 4000 Hz, the examination was not conducted during a period of ACDUTRA.  Moreover, in February and October 2015, a VA examiner opined that the hearing loss and tinnitus are less likely as not due to military noise exposure during periods of ACDUTRA as the Appellant reported use of hearing protection while on the firing range and more likely due to occupational noise exposure that occurred during the same timeframe without the use of hearing protection.  The examiner also indicated that the configuration in 1971 was not suggestive of physical trauma.

The Board has considered the Appellant's lay statements and testimony.  He is competent to report when he first noticed symptoms of tinnitus and hearing loss.  However, he has not alleged that either condition manifested during a period of ACDUTRA.  He indicated that he first noticed hearing loss in or around 2002, about 10 years prior to his Board hearing.  He testified that he noticed tinnitus years before that but he did not indicate that his tinnitus manifested during a period of ACDUTRA.  Thus, his testimony does not support a finding that his hearing loss or tinnitus manifested during a period of ACDUTRA.  Further, in light of the report of noise exposure during service, albeit with hearing protection, and the concurrent occupational noise exposure without hearing protection, the Veteran is not competent to relate either condition to his periods of ACDUTRA.  He does not have the medical expertise to determine whether his disabilities are due to occupational noise exposure without hearing protection or alleged noise exposure during ACDUTRA with hearing protection.  Here, the VA examiner has indicated thorough review of the evidence and has considered the Appellant's statements and testimony, and found that his disabilities are more likely than not related to occupational noise exposure that occurred during the same timeframe as his service with the USAR.  The examiner's opinions are supported by rationale.  Consequently, the Board finds that the Appellant's statements are not sufficient for a finding of service connection for bilateral hearing loss or tinnitus.

In light of the foregoing, the Board finds the preponderance of the evidence does not show the Appellant's bilateral hearing loss or tinnitus manifested during a period of ACDUTRA or are otherwise related to an injury or disease incurred during a period of ACDUTRA.  The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims.  Gilbert, 1 Vet. App. 49.  The appeals are denied.

C. Diabetes Mellitus, Type II

The Appellant seeks service connection for diabetes mellitus, type II.  The Board observes that he has a current diagnosis; however, as discussed below, the preponderance of the evidence weighs against the claim for service connection.

First, as discussed above, while diabetes mellitus, type II is a condition subject to presumptive service connection under 38 C.F.R. �� 3.307 and 3.309, the presumption does not apply to periods of ACDUTRA.

Regarding direct service connection, service treatment records do not show a diagnosis or symptoms of diabetes mellitus, type II, during a period of ACDUTRA.  While a February 1971 report of medical history form shows a doctor's notation of sugar in the urine in 1969, private treatment records indicate diabetes was not diagnosed until 2002, more than 30 years after service.  See Private Treatment Records, Dr. C.W.D., January 2008.  Notably, no tests dated during a period of ACDUTRA show a positive screen for sugar in the urine.  Further, the February 1971 medical history form was not completed during a period of ACDUTRA.  See Personnel Records.

Per the Board's remand in December 2014, an opinion was obtained addressing possible relationships between the reported sugar in the Appellant's urine as noted in February 1971, and his current diabetes mellitus, type II.  In February 2015, a VA examiner opined that it is less likely as not that diabetes mellitus, type II, was incurred in or caused by an in-service injury, event, or illness.  The examiner stated that without documented symptoms consistent with diabetes, and without laboratory confirmation of the criteria for a diagnosis of diabetes, a one-time incident of sugar in the urine does not make the diagnosis of diabetes likely or probable.  The examiner also noted the January 2008 private treatment record indicating diabetes mellitus, type II, since 2002, and pointed out that the condition manifested more than 30 years after the notation of "sugar or albumin in urine" in 1971.  Therefore, the examiner found a lack of continuity of symptoms or findings of diabetes for more than 30 years.  Consequently, the examiner found it less likely than not that the Appellant's diabetes mellitus, type II, is related to active service even given the February 1971 notation of sugar or albumin in the urine.

An addendum opinion was obtained in October 2015.  The examiner reiterated the prior opinion and cited medical literature which explained the various criteria and laboratory testing required for a diagnosis of diabetes mellitus, type II.  The examiner explained that the Appellant did not have documentation that he met the criteria during periods of ACDUTRA and observed that the notation in February 1971 also failed to indicate the criteria necessary for a diagnosis of diabetes mellitus, type II.  The examiner again emphasized the evidence showed manifestation of diabetes mellitus, type II in 2002, which is more than 30 years after the notation in 1971.  The examiner concluded that it is less likely than not that the Veteran's diabetes mellitus, type II, is related to active service.

Based on the foregoing the Board finds the Appellant's diabetes mellitus, type II did not manifest during a period of ACDUTRA and is not otherwise due to injury or disease incurred during a period of ACDUTRA.  The Board considered the Appellant's statements indicating a nexus between the sugar in his urine noted in 1971 and his current disease; however, his assertion has no probative value because he, as a layperson, is not competent to indicate the etiology of his disease.  See 38 C.F.R. � 3.159(a)(2); see also Routen, 10 Vet. App. at 186.  As discussed in detail in the VA examiner's October 2015 addendum opinion, a diagnosis of diabetes mellitus, type II, requires laboratory testing and medical expertise which the Appellant does not have.  Consequently, he is not competent to report on the etiology of his condition.

In light of the foregoing, the Board finds the preponderance of the evidence does not show his diabetes mellitus, type II, manifested during a period of ACDUTRA or is otherwise related to an injury or disease incurred during a period of ACDUTRA.  The Board has considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.  Gilbert, 1 Vet. App. 49.  The appeal is denied.

ORDER

Service connection for hypertension is denied.

Service connection for a low back disorder is denied.

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

Service connection for diabetes mellitus, type II, is denied.

____________________________________________
JENNIFER HWA
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: ROBERT C SCHARNBERGER

disposition: remanded

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

text:
Citation Nr: 1610000
Decision Date: 03/11/16    Archive Date: 03/22/16

DOCKET NO.  10-26 872	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUE

Entitlement to service connection for a skin disability, claimed as soft tissue sarcoma, skin cancer, and skin rash.

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

Patricia Veresink, Counsel

INTRODUCTION

The Veteran served on active duty from November 1967 to June 1969.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

The Veteran testified at a Travel Board hearing in April 2012.  A transcript of that hearing has been associated with the claims file.

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

REMAND

The Board remanded the issues for a Travel Board hearing in March 2012 and for a VA examination and nexus opinion in February 2013.  The Board must remand the issue again to obtain records form the Social Security Administration.  VA must attempt to obtain relevant records from a Federal department or agency unless further attempts would be futile.  These records include medical and other records from SSA.  See 38 C.F.R. � 3.159(c)(2).  In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the CAVC found that VA's duty to assist specifically includes requesting information from other Federal departments.  In Baker v. West, 11 Vet. App. 163, 169 (1998), the CAVC further stated that VA is required to obtain evidence from other agencies, including the SSA.  The Board acknowledges that the SSA determinations are of record, but the claims file does not contain any medical records or other information used as the basis of the SSA claim.  Therefore, the Board finds that remand is necessary to obtain any outstanding SSA records.

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain and associate with the claims file all SSA determinations and medical records used by SSA to make any determination.  All attempts to obtain these records should be documented in the claims file.

2.  After completion of the above and any other development deemed necessary, review the expanded record and determine if service connection is warranted.  If the claim remains denied, the Veteran should be furnished an appropriate SSOC and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.

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

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

_________________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2015).


judge_norm: SHANE A DURKIN

text:
Citation Nr: 1611000
Decision Date: 03/17/16    Archive Date: 03/23/16

DOCKET NO.  10-42 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma

THE ISSUES

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

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

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

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

5.  Entitlement to service connection for a back disability.

6.  Entitlement to service connection for chronic lymphocytic leukemia, to include as caused by exposure to ionizing radiation.

ATTORNEY FOR THE BOARD

A. Adamson, Counsel

INTRODUCTION

The Veteran served on active duty from June 1971 to June 1974.  This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  These issues were remanded by the Board in March 2013.

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System.

REMAND

While the Board sincerely regrets the additional delay, additional development is required before the Veteran's claims are decided.

In March 2013, the Board remanded the Veteran's claims in order for further evidentiary development to occur, to include affording the Veteran VA examinations with regard to each of his claims.  The matter was then to be readjudicated following the development.  A review of the record reveals some confusion as to the Veteran's appropriate address.  The Veteran's copy of the Board's remand was returned as undeliverable.  The Veteran did not report to the scheduled VA examinations.  Further, the supplemental statement of the case was returned as undeliverable.  These various documents were sent to two different addresses, both with returns as undeliverable.  The record shows an inquiry with the Social Security Administration returned with a wholly different address in a different state.  The Board also observes the Veteran's VA file as showing different addresses for mail and for compensation and pension payments.  The record also includes a telephone number for the Veteran.  There is no indication that the RO attempted to contact the Veteran in order to obtain his current address given the state of confusion in the record.  Communication with the Veteran is indeed necessary.  The Board finds that the remand directives were not substantially complied with making additional remand necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand).  On remand, the RO or the Appeals Management Center (AMC) should take action to obtain the Veteran's current address of record, to include calling the Veteran by telephone if necessary.  Once the appropriate address is obtained, the RO or the AMC should take the action not yet completed in accordance with the March 2013 Board remand, to include VA examinations and readjudication of the claims with proper notice to the Veteran.

The Board also observes that the Board's requisite development of the Veteran's in-service exposure to ionizing radiation did occur following the Board's prior remand.  The Veteran should also be afforded a VA examination to determine the likelihood that his chronic lymphatic leukemia (CLL) is related to his active service, to include the various in-service experiences reported by the Veteran in his March 2009 statement and on his November 2009 Radiation Risk Activity Information Sheet.  38 C.F.R. � 3.159(c)(4) (2015).

Accordingly, the case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions:

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. � 3.159(e).

2.  The RO or the AMC should undertake appropriate development to obtain the Veteran's current mailing address, to include, if necessary, calling the Veteran by telephone.  If the RO or the AMC cannot obtain a current address for the Veteran, all attempts to do so should be documented in the record.

3.  Once the record is developed to the extent possible, to include obtaining the Veteran's appropriate mailing address, afford him the VA examinations required by the March 2013 Board remand.  In particular, the Board required that the Veteran be scheduled for appropriate VA examinations to determine whether his claimed disorders are related to or had their onset in service.  All pertinent evidence must be made available to and reviewed by the examiner.  The examiner should clearly identify each disorder of the feet, hands, and back, including any arthritis, present at any time during the pendency of the claims.  Thereafter, the examiner should state an opinion with respect to each such disorder as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's period of service.  Any opinions expressed by the examiner must be accompanied by a complete rationale.

4.  Once the record is developed to the extent possible, to include obtaining the Veteran's appropriate mailing address, the RO or the AMC must arrange for the Veteran to be scheduled for an appropriate VA examination to determine whether his claimed CLL is related to or had its onset in service, to include due to the type of work reported by the Veteran in his March 2009 statement and on his November 2009 Radiation Risk Activity Information Sheet.  All pertinent evidence of record must be made available to and reviewed by the examiner.  The examiner should state an opinion as to whether there is a 50 percent or better probability that any currently diagnosed CLL is etiologically related to the Veteran's period of service.  Any opinions expressed by the examiner must be accompanied by a complete rationale.

5.  The RO or the AMC should also undertake any other development it determines to be warranted.

6.  Then, the RO or the AMC should readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran a supplemental statement of the case and afford him the requisite opportunity to respond before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. � 5109B (West 2014).

_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2015).


judge_norm: U R POWELL

text:
Citation Nr: 1612000
Decision Date: 03/24/16    Archive Date: 03/29/16

DOCKET NO.  11-13 193	)	DATE
	)
	)

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

THE ISSUE

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

REPRESENTATION

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

ATTORNEY FOR THE BOARD

Anthony Flamini, Counsel

INTRODUCTION

The Veteran had active service from June 2002 to March 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which in relevant part denied service connection for PTSD, but granted service connection for mild adjustment disorder, anxiety disorder, and major depressive disorder (now characterized as anxiety disorder, not otherwise specified).

The Veteran's claim was previously remanded by the Board in August 2014 to obtain outstanding VA treatment records and provide the Veteran with a new VA PTSD examination.  Review of the claims file reflects that outstanding VA treatment records were associated with the claims file and that a new VA PTSD examination was conducted in February 2015.  Thus, the Board finds that there has been substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

FINDING OF FACT

The Veteran's current psychiatric symptoms do not meet the diagnostic criteria for PTSD for VA purposes

CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.384, 4.125 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Correspondence issued in May 2009 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating.

As to VA's duty to assist the Veteran with his service connection claim, the Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the Veteran.  See generally 38 C.F.R. � 3.159(c).  The record in this case includes service treatment records, VA treatment records, and lay evidence.

Additionally, multiple VA examinations were conducted with respect to the Veteran's claim of entitlement to service connection for PTSD, most recently in February 2015.  Review of the February 2015 VA examination report reflects that it is adequate for the purpose of adjudicating the Veteran's claim.  Specifically, the examination report reflects that diagnoses and opinions which are congruent with the other evidence of record were rendered following a physical examination of the Veteran and a review of the record.  All offered opinions were accompanied by a complete rationale.  38 C.F.R. � 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

The Veteran seeks entitlement to service connection for PTSD.  At the outset, the Board emphasizes that the Veteran already has service connection established for anxiety disorder, not otherwise specified, evaluated as 10 percent disabling under Diagnostic Code 9413 (for symptoms encompassing mild adjustment disorder, major depressive disorder, and anxiety disorder), and for traumatic brain injury (TBI) residuals, evaluated as 10 percent disabling under Diagnostic Code 8045 (due to mild loss of memory, attention, concentration, or executive functions).

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Certain acquired psychiatric disorders, including a psychotic disorder, qualify as "chronic diseases" because they are listed under 38 C.F.R. � 3.309(a); therefore, the presumptive provisions of 38 C.F.R. � 3.303(b) might apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see 38 C.F.R. � 3.384.  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection.  38 C.F.R. � 3.303(b).

Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, including psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112, 1113 (West 2014); 38 C.F.R. �� 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  However, where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation.  See Combee, 34 F.3d at 1043.

The claims file includes numerous VA treatment records in which medical professionals confirmed the Veteran's psychiatric diagnoses using the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and assigned Global Assessment of Functioning (GAF) scores.  The Board notes that the newer Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V) has now been officially released, and VA regulations have been changed to reflect this fact.  See 38 C.F.R. � 4.130 (2015).  However, the Veteran has psychiatric diagnoses under the DSM-IV as well as diagnoses under the DSM-V, as shown by the February 2015 VA examination.  Thus, the Board shall consider his appeal in light of both the DSM-IV and the DSM-V criteria.

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. �� 3.102, 4.3 (2015).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. � 7104(a) (West 2014).  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Regarding the Veteran's claim of entitlement to service connection for PTSD, specifically, the Board notes that this requires precise findings.  These findings are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  See 38 C.F.R. � 3.304(f).  The diagnosis of PTSD must comply with the criteria set forth in the DSM-V.  Id.; see 38 C.F.R. �� 4.125(a), 4.130 (2015).  However, the record reflects that the Veteran's psychiatric health has also been analyzed under the DSM-IV.  See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that VA may presume that a diagnosis made by a mental health care professional was made in accordance with the DSM-IV).  Thus, as noted above, the Board considers his appeal in light of both the DSM-IV and DSM-V criteria.

With respect to the third element of service connection for PTSD, if the evidence shows that a veteran engaged in combat and the veteran is claiming a combat-related stressor, no credible supporting evidence is required.  38 C.F.R. � 3.304(f); see Doran v. Brown, 6 Vet. App. 283 (1994).  DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror.  However, the record has not indicated and the Veteran has not contended that he was engaged in combat during his military service or that he is claiming a combat-related stressor.  Thus, the revised provisions of 38 C.F.R. � 3.304(f) are inapplicable to his appeal.

Regarding the first element of service connection for PTSD, i.e., a current medical diagnosis of PTSD, the Veteran's claims file includes numerous entries of VA treatment records that show an assessment of PTSD during the pendency of the appeal.  However, it does not appear that these records used the DSM-IV or DSM-V criteria for establishing a clear diagnosis of PTSD.  For example, a May 2009 VA treatment note indicated that a PTSD screening test (PTSD 4Q) was positive, just meeting the criterion cutoff of 4.  A July 2009 VA treatment note diagnosed the Veteran with only a provisional chronic PTSD diagnosis.  In another treatment note, depression, PTSD, and alcohol abuse/dependence were listed as suspected/probable psychiatric disorders.  In a December 2009 VA mental health diagnostic study note, the psychologist indicated that four of the DSM-IV criteria were met for PTSD, and a PTSD diagnosis was "suggested."   However, by January 2010, it was noted that one of the DSM-IV criterion (C) was no longer met as the Veteran continued treatment for "PTSD type symptoms."  A February 2010 VA treatment note indicated that, "At this point, the veteran no longer appears to meet criteria for PTSD with the diagnosis being reduced, as a result."  By that time, three of DSM-IV criteria for PTSD were no longer met.  A March 2010 VA treatment note indicated that, "Despite good improvement, the PTSD diagnosis is not being changed at this time."  However, by June 2010, the Veteran was diagnosed as having adjustment disorder with mixed anxiety and depressed mood as well as anxiety disorder.

The Veteran was provided with a VA PTSD examination in July 2009, at which time he was diagnosed as having adjustment disorder, not otherwise specified.  The examiner explained that:

Overall, [the Veteran] is not seen as suffering from PTSD. He did report a stressor that meets DSM-IV PTSD stressor criteria.  His service to our country is to be praised and appreciated.  However, he did not report psychological symptoms that meet DSM-IV PTSD symptom criteria.  Importantly, he did not report significant psychosocial dysfunction that could be attributed to PTSD-like symptoms.  The Veteran does appear to suffer from a mild disorder that is independently responsible for some quite mild psychosocial functioning impairment.  This is an adjustment disorder NOS.

A September 2009 VA TBI examination diagnosed the Veteran as having mild, recurrent major depressive disorder as well as anxiety disorder.  The examiner explained that both diagnoses were related to the same etiology and occurred as commingled secondary to his war zone experience.  The examiner indicated that the Veteran exhibited symptoms of a diagnosis of major depressive disorder as well as behaviors/symptoms consistent anxiety disorder, possibly attributable to a mild TBI. The examiner also indicated that Veteran exhibited symptoms consistent with a "possible PTSD" as evidenced by hypervigilance, recurrent nightmares replete with tissue damage and death, heightened sensory experiences, emotional lability/agitation and poor anger modulation, and diminished frustration tolerance.

The Veteran was provided with another PTSD examination in November 2009, at which time he was diagnosed as having mild major depressive disorder, anxiety order not otherwise specified, and sleep disorder.  The examiner indicated that the Veteran's depression and anxiety symptoms (which included constant hypervigilance, insomnia, nightmares, and racing thoughts) were related to trauma related stimuli.  However, the examiner emphasized that PTSD was not found upon examination.

The Veteran was provided with another PTSD examination in August 2010, at which time he was diagnosed as having anxiety disorder not otherwise specified.  The examiner explained that:

Full criteria for PTSD not met at this time. Criterion A stressor met and connected to combat as well as pt's fear of hostile military activity. This has led to periodic reexperiencing (criterion B) through nightmares and flashbacks as well as hyperarousal symptoms (criterion D) evidenced by discomfort in crowds and around other people as well as irritability and hypervigilance. Criterion C for PTSD not met as Pt did not endorse significant avoidance symptoms. He noted that he relationship with his wife has improved, that he remains in contact with friends, exposes himself to combat via videogames and spends time with other veterans. His impairment functioning is significant, but mild and does not impair occupational or social functioning for the most part.  Impairment exists somewhat in his relationship with his daughter in that he is often reminded of a child pt saw in combat [].  In addition, concentration and sleep are impaired likely as a result of anxiety symptoms.

The Veteran was provided with a VA mental disorders examination in July 2011, at which time he was again diagnosed as having anxiety disorder not otherwise specified.  The examiner explained that:

Anxiety Disorder NOS still represents anxiety symptoms associated with traumatic stress exposure during combat (e.g. re-experiencing, avoidance and hyperarousal symptoms) and is related to military experiences previously documented.  He was given this diagnosis in lieu of PTSD, since he did not and still does not meet full diagnostic criteria for PTSD.  He also has SC for traumatic brain disease and reports he still has some mild problems with memory which is attributed to this.  Otherwise, the symptoms of anxiety reported are associated with Anxiety Disorder NOS and not TBI.

The Veteran was provided with yet another VA PTSD examination in February 2015, at which time he was diagnosed as having other specified trauma and stressor related disorder (sub-threshold PTSD), which the examiner explained was the DSM-V equivalent to the DSM-IV's "anxiety disorder not otherwise specified" diagnosed in previous examination reports.  The examiner concluded that the totality of the data supported sub-threshold PTSD (i.e., anxiety disorder) since the beginning of his claim in May 2009 until the present.  The examiner opined that the Veteran's other specified trauma and stressor-related disorder (sub-threshold PTSD) was more likely than not related to his military service/stressors.

As demonstrated by the above evidence, a confirmed diagnosis of chronic PTSD under either the DSM-IV or DSM-V criteria has not been shown during the entire period on appeal.  Moreover, the Board emphasizes that the totality of the Veteran's psychiatric symptoms have been attributed to anxiety disorder, not otherwise specified, as well as TBI residuals, disabilities which have already been service connected.  The evaluation of the same symptoms under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. � 4.14.  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  As such, the Board cannot separately service connect the Veteran for psychiatric symptoms which are already considered under the evaluations of his service-connected anxiety disorder, not otherwise specified, and TBI residuals disabilities.

The Board acknowledges that in his February 2016 Informal Hearing Presentation, the Veteran's representative argued that "the February 2, 2015 examination revealed symptomology that equivocates to the 30% disabling rating to include audio hallucinations, anxiety, chronic sleep impairment, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and symptoms controlled by medications."  However, rather than an argument in favor of separate service connection for PTSD, the Board feels that this is better characterized as a disagreement with the currently-assigned disability evaluations for service-connected anxiety disorder, not otherwise specified, and/or TBI residuals.  The Board emphasizes that the issues of entitlement to higher evaluations for these service-connected disabilities are not before the Board at this time, and that the Veteran is free to file claims for entitlement to higher disability evaluations at any time in the future.

Due consideration has been given to the Veteran's statements in support of his claim.  Although the Veteran is competent to report his psychiatric symptoms, he is not competent to diagnose these symptoms, as the determination of the nature and etiology of the disability requires medical expertise.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007).  He has not been shown to have such medical knowledge.

Consequently, entitlement to service connection for PTSD is denied.  Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim, and the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

ORDER

Entitlement to service connection for PTSD is denied.

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

Department of Veterans Affairs


judge_norm: A JAEGER

text:
Citation Nr: 1613000
Decision Date: 03/31/16    Archive Date: 04/07/16

DOCKET NO.  10-33 769	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Veteran represented by:	The American Legion

ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel

INTRODUCTION

The Veteran served in the Army National Guard of Alabama with active duty for training from July 1961 to December 1961 and active duty from September 10, 1963 to September 12, 1963, under Title 10 of the United States Code pursuant to Executive Order 11118.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

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

REMAND

While the Board regrets the additional delay, 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 (West 2014); 38 C.F.R. � 3.159 (2015).

The Veteran contends that he currently has bilateral hearing loss as a result of exposure to the firing of M1 rifles without hearing protection when he assisted on the range during his period of basic training.  He further claims he has had problems with his hearing since basic training and that, as a result of his six years in the National Guard, he was exposed to loud artillery rounds on numerous occasions.  Consequently, he alleges that service connection for bilateral hearing loss is warranted.

In order to determine the nature and etiology of his bilateral hearing loss, the Veteran received a VA examination in February 2015.  At such time, the examiner noted that the Veteran has sensorineural hearing loss in both ears and audiological findings reflect a current diagnosis of bilateral hearing loss per VA regulations.  However, the examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or the result of his military service.  The rationale noted the Veteran's own reports that he had to lay near soldiers firing M1 rifles without ear protection so as to observe the soldier's eyes during basic training, as well as his civilian service at a valve company for 13 years where hearing protection was required.  The Board finds that simply detailing the Veteran's history of noise exposure, without further explanation, renders the VA examiner's opinion inadequate.  Moreover, there is no indication that the examiner considered the Veteran's allegation that he has had problems with his hearing since basic training.  As such, a remand for an addendum opinion is necessary to address the etiology of the Veteran's bilateral hearing loss.

Accordingly, the case is REMANDED for the following action:

1.  Return the claims file to the VA examiner who conducted the Veteran's February 2015 audiological examination.  The record and a copy of this Remand must be made available to the examiner.  The examiner shall note in the examination report that the record and the Remand have been reviewed.  If the February 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion.  The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.
file should be reviewed by the examiner.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is related to his military service, to include his period of ACDUTRA in 1961 when he alleges that he was exposed to the firing of M1 rifles without hearing protection when he assisted on the range and subsequent National Guard service in which he claims that he was exposed to loud artillery rounds on numerous occasions.  In offering such opinion, the examiner should address the Veteran's allegation that he has had problems with his hearing since basic training.

The examination report should include a complete rationale for all opinions expressed.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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

_________________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2015).


judge_norm: VITO A CLEMENTI

text:
Citation Nr: 1614000
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO. 05-39 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland

THE ISSUE

Entitlement to service connection for a gastrointestinal disability.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel

INTRODUCTION

The Veteran had active service in the United States Army from December 1970 to June 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In December 2008, the Board denied service connection for residuals of neck, leg, and back injury(ies), found that new and material evidence had been received sufficient to reopen claims for service connection for a skin disorder, an acquired psychiatric disorder, and a gastrointestinal disorder, and denied those claims on the merits. The Veteran appealed the portion of the December 2008 Board decision that denied service connection for the above disabilities to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Court granted the joint motion for partial remand filed by representatives for both parties, vacating the portion of the Board's decision that denied service connection for the above disabilities, and remanding the claims to the Board for further proceedings consistent with the joint motion. In March 2010, the Board remanded these claims for additional development in compliance with the December 2009 Court Order.

In March 2012, the Board granted service connection for residuals of neck, leg, and back injury(ies), as well as the skin disorder and remanded the issue of acquired psychiatric disorder. The claim for service connection for a gastrointestinal disorder was denied. The RO subsequently granted the Veteran service connection for the acquired psychiatric disorder in July 2013. In September 2013, the Veteran appealed the denial of service connection for the gastrointestinal disorder to the Court, which again granted the joint motion for remand filed by representatives for both parties, vacating the portion of the Board's decision that denied service connection for the gastrointestinal disorder, and remanding the claim to the Board for further proceedings consistent with the joint motion. The only matter pending before the Board is the claim for service connection for a gastrointestinal disorder.

The Board remanded this claim for further development in April 2014 and in October 2014, and unfortunately, for reasons discussed below, another remand must be issued for remedial evidentiary development.

The Veteran appeared at a Central Office hearing before the undersigned in September 2015. A transcript is of record.

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

REMAND

The Veteran was afforded a hearing before a Veterans Law Judge in September 2015 and reported that he was in receipt of disability benefits from the Social Security Administration (SSA). He specifically expressed that his gastrointestinal disability was part and parcel of the consideration of this award. While VA has gone to extensive lengths to secure outstanding federal and other records, and has secured assessments from the Office of Personnel Management and Department of Labor, a request for records to SSA has not been made. All records held in federal custody are deemed constructively part of the record, and thus, VA must contact SSA and obtain any and all medical records utilized in a disability adjudication by that agency. See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Other development is directed below, and the case is REMANDED for the following action:

1. Contact SSA and obtain any and all medical records used in the disability adjudication of the Veteran. Should no records be found to exist after an exhaustive search, so annotate the record.

2. Refer the claim to a specialist in gastroenterology (Doctor of Medicine/Doctor of Osteopathic Medicine with a completed residency in internal medicine and completed fellowship in gastroenterology) for a review of the medical evidence of record and for an opinion as to the etiology of current Crohn's disease. In this respect, the physician is asked to consider the following:

-That the Veteran did, in 1970, experience a documented episode of vomiting following eating and that this was 16 days into his training at Ft. Dix, New Jersey.

-That the Veteran has been diagnosed with Crohn's disease.

-That the Veteran's physician has described, and that additional research has confirmed, that portions of Ft. Dix, New Jersey are listed in the EPA's Superfund program as due to toxin contamination in soil and groundwater between 1950 and 1984, and that the Veteran has alleged exposure to a certain chemical, TCE, which he attributes to the development of Crohn's.

The gastroenterologist is asked to then opine, following a review of the record, as to whether current Crohn's disease had causal origins in service, to include as manifesting with vomiting in service, and to include as a result of toxin exposure at Ft. Dix, inclusive of TCE or any other toxin.

THE EXAMINER IS ADVISED THAT THE COURTS HAVE IMPOSED A REQUIREMENT ON THE BOARD TO EVALUATE ANY MEDICAL OPINIONS BY EXAMINATIONS OF MULTIPLE FACTORS, INCLUDING BUT NOT LIMITED TO:

WHETHER THE EXAMINER CONDUCTED A PERSONAL INTERVIEW OF THE VETERAN;

WHETHER CLINICAL TESTING WAS CONDUCTED AND THE RESULTS;

WHETHER A COMPREHENSIVE REVIEW OF THE CLAIMS FOLDER AND OTHER MEDICAL AND FACTUAL EVIDENCE WAS CONSIDERED, INCLUDING OTHER MEDICAL OPINIONS;

THE CONCLUSIONS REACHED AND WHETHER THEY ARE BASED ON THE STATE OF MEDICAL KNOWLEDGE. THE EXAMINER SHOULD PROVIDE ANY SUPPORTING CITATIONS TO MEDICAL LITERATURE IN ORDER TO EXPLAIN ANY CONCLUSIONS REACHED.

THE EXAMINER IS ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT.

3. Following the above-directed development, re-adjudicate the Veteran's claim. Should the claim remain denied, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication.

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

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

_________________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. � 20.1100(b) (2015).