judge_norm: MICHAEL J SKALTSOUNIS

condition: skin

text:
Citation Nr: 23017000
Decision Date: 03/19/23	Archive Date: 03/19/23

DOCKET NO. 19-10 635
DATE: March 19, 2023

ORDER

Entitlement to service connection for a skin disorder, including seborrheic dermatitis and skin peeling syndrome, to include as due to herbicide agent exposure, is granted.

FINDING OF FACT

The evidence is in approximate equipoise that a skin disorder, including seborrheic dermatitis and skin peeling syndrome, is due to service, including herbicide agent exposure.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a skin disorder, including seborrheic dermatitis and skin peeling syndrome, to include as due to herbicide agent exposure, are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from June 1968 to June 1971, including service in the Republic of Vietnam from November 1969 to November 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ).

The Veteran recently testified at a hearing before the undersigned Veterans Law Judge in January 2023.  A transcript of the hearing has been associated with the claims file.

1. Entitlement to service connection for a skin disorder to include seborrheic dermatitis and skin peeling syndrome, to include as due to herbicide agent exposure

The Veteran has asserted that he has a skin disorder to include seborrheic dermatitis and skin peeling syndrome that began during military service and continued thereafter.  VA conceded exposure to herbicide agents based on service in the Republic of Vietnam from November 1969 to November 1970.

In order to establish entitlement to service connection for the claimed disability, there must be: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. � 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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. � � 1110, 1131; 38 C.F.R. � 3.303.

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. � 3.309(a). 38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. � 3.303(d).

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. � 1153(a); 38 C.F.R. � 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Analysis

The Veteran filed a claim for a skin condition in June 2016.

The Veteran was afforded a VA examination for skin diseases in September 2016.  The examiner noted a diagnosis of dermatitis or eczema with a date of diagnosis of 2008, and that the Veteran reported that he was diagnosed with seborrheic dermatitis in 2008 and provided with shampoo that was ineffective in controlling his symptoms.  He uses over the counter products recommended by his primary care provider.  He stated that the areas which bother him the most are his legs, arms, and behind his ears.  The examiner noted dermatitis, total body area, 5 percent to 20 percent; exposed area 5 percent.

Social Security Administration medical records were associated with the file in January 2017.  Records dated July 2006 noted complaints of facial rash which he reported he has had in the past.  He reported his skin dries out and peels off but recurs.  He was prescribed eryderm lotion.

A VA Environmental Exam Note/Agent Orange Program Note dated May 2007 notes that the Veteran reported that he noticed that since he came back from Vietnam, he has peeling of the skin after a shower.  He reported he has experienced peeling of the skin since 1969.

VA dermatology records dated December 2007 note on the bilateral nasolabial folds, light pink greasy scaly patches with adjacent hypopigmented patch, also scaling of bilateral inner ears seborrheic dermatitis, mild with post-inflammatory hypopigmentation.

The Veteran was afforded a VA examination for skin diseases in September 2019.  The examiner noted a diagnosis of seborrheic dermatitis in December 2007.  She also noted "other" skin condition diagnosis as "skin peeling syndrome" and the date of diagnosis as 1970.  She also provided a link to a medical article addressing "Acral peeling skin syndrome." https://ghr.nlm.nih.gov/condition/acral-peeling-skin-syndrome.  The examiner noted the Veteran's service from 1968 to 1969 in the Republic of Vietnam.  She noted that a December 2007 dermatology consult diagnosed seborrheic dermatitis and noted that on examination findings note hypopigmentation around nasolabial folds.  The Veteran reported that he returned from Vietnam in 1969 and observed that every time he took a shower his skin would just peel off in layers.  He was seen at the VA and "Derm" who prescribed triamcinolone cream and other medications he does not remember, but per the Veteran these did not help.  The examiner noted that he created his own regimen to treat his skin and it has been what he has been doing all these years - cocoa butter and rejuvenating cream after he showers daily.  The examiner noted that the Veteran reported his skin only peels off in layers when it gets moist and he was diagnosed in 2007 with seborrheic dermatitis, but this is usually not involving the arms and legs, and more the scalp, face, ears and sometimes chest.  He denies it being painful but reports its itchy and uncomfortable.  The examiner noted that the Veteran's current skin condition is only visible after he takes a shower as that is when his skin peels off; she did not see this but did note some facial/ear areas of irritation he describes as always being there and are worse after showering but his regimen of cocoa butter and rejuvenating cream after taking a shower daily helps.  The examiner noted that the seborrheic dermatitis affects 5 to 20 percent of total body area and 5 to 20 percent of exposed area.  The examiner described the diagnosis, appearance, and location of the Veteran's skin disorder as follows: "dermatitis (seborrheic) - ears, nose, nasolabial folds, scalp-appear as either hypopigmented, oily areas or thin layer of skin that looks to need to be peeled off.  Not painful.  Darker in some areas."  He had no scars and reported it is more pigment changes and pointed to nasolabial folds.  The examiner stated that due to the fact that the chart does not offer much about the Veteran's skin problem, he has been treating himself for years, and it only happens after showering, she could only go by what she saw, the Veteran's story line, and chart notes, along with extensive EBR (evidence-based review).  The examiner did not provide a nexus opinion.

In January 2023, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  It was noted that the September 2019 examiner rendered a skin disorder diagnosis, in addition to seborrheic dermatitis, and she diagnosed skin peeling syndrome with a date of diagnosis of 1970.  The Veteran testified that he was treated for a skin peeling problem after he got out of the service.  He stated he didn't see a doctor because he didn't have a doctor, and just used homemade remedies.  The Veteran stated that when he went to the VA, they gave him medication to wash his hair.  He was getting big scabs on his head.  His hair would fall out.  He described scabs in his ears and sores and his lips would itch.  He stated that when he took a bath his skin just peels off.  He described itching that requires moisturizing.  He described current breakouts on his shoulder and elbow.  He stated that the skin peeling disorder began during service and affected his whole body on various parts, his back, his torso, arms, shoulders, legs, feet, ears, nose, face, scalp.  He described "all of this dead skin" when he washes.  Dead skin comes off on sheets and clothing.  He noticed it on his head first during service and then it spread and worsened as he got older.  He stated he started going to the VA when he had thyroid cancer in the early 90s and they gave him medication for his scalp, a shampoo.  He stated if he had known he could go to the VA he would have gone earlier for his skin condition.  He testified that as far as his observations, his current skin problems are the same kind of skin problem ever since active service and continued to the present.  He testified that when he first came home from Vietnam, he thought it was" jungle rot."

In January 2023, a VA Healthcare Network Outpatient Clinic Note was submitted by a physician who stated that the Veteran has had chronic skin problems since being in Vietnam a and that he had chronic skin peeling dermatitis with post-inflammatory hypopigmentation and scarring.  The physician opined that these skin problems are at least as likely as not related to exposures in Vietnam including jet fuels, burning fuels, and agent orange.

The Board finds that the September 2019 examiner diagnosed "skin peeling syndrome" which she accepted as being diagnosed in 1970.  The examiner's observations and medical findings during the examination are consistent with the other medical evidence of record and with the Veteran's testimony and statements.  The January 2023 VA physician's medical opinion is also consistent with the September 2019 VA examiner's observations and findings, the Veteran's testimony and statements, and the other medical evidence of record.  This evidence is entitled to high probative value.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no persuasive evidence of record to counter this evidence.

Service connection may be granted when the evidence is in an "approximate balance," such that a Veteran is entitled to the benefit of the doubt when the evidence is approximately balanced, i.e., nearly equal.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran has a current diagnosis of seborrheic dermatitis and skin peeling disorder, meeting the first element required to establish service connection.  Conceded exposure to herbicide agents during service establishes the second element of service connection, an in-service event.  The Board finds that the evidence, including the circumstances of the Veteran's service, conceded exposure to herbicide agents, the medical evidence including the VA examination and the medical nexus opinion, and the Veteran's credible testimony, constitutes highly probative evidence of a nexus between service and the Veteran's skin disorder.  The Board finds that the evidence is at least in approximate balance as to whether the Veteran incurred his current skin disorder as during active-duty service.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  The evidence does not persuasively weigh against such finding.  Resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's skin disorder, including seborrheic dermatitis and skin peeling disorder, is directly related to service, to include as due to herbicide agent exposure.  Therefore, entitlement to service connection is warranted.  38 U.S.C. � 5107(b); 38 C.F.R. � 4.3.

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Debra B. McLoughlin, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


series: legacy

judge_norm: LESLEY A REIN

judge_role: Veterans Law Judge

disposition: denied

benefit: dic

text: Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 is denied.

text:
Citation Nr: 23018000
Decision Date: 03/22/23	Archive Date: 03/22/23

DOCKET NO. 19-10 466
DATE: March 22, 2023

ORDER

Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. � 1318 is denied.

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

FINDINGS OF FACT

1. The Veteran was not in receipt of a total disability rating for 10 continuous years immediately preceding his death, was not rated as totally disabled continuously since his discharge from active duty and for at least 5 years preceding death, and was not a prisoner of war.

2. The Veteran died in February 2018; his cause of death was a closed head injury due to a fall and cirrhosis of the liver due to alcohol abuse.

3. At the time of his death, the Veteran did not have any service-connected disabilities.

4. The evidence persuasively weighs against a finding that the cause of the Veteran's cause of death was etiologically related to active-duty service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to DIC pursuant to 38 U.S.C. � 1318 have not been met. 38 U.S.C. � 1318; 38 C.F.R. � 3.22.

2. The criteria for service connection for the Veteran's cause of death have not been met. 38 U.S.C. �� 1310, 5107; 38 C.F.R. �� 3.5, 3.102, 3.312.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1962 to October 1966, including service in the Republic of Vietnam.

The Veteran died in February 2018. The appellant is his surviving spouse.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

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. �� 5100, 5102, 5103, 5103A; 38 C.F.R. � 3.159. Neither the appellant nor his representative have advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015).

1. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. � 1318

Under 38 U.S.C. � 1318, a surviving spouse may be entitled to DIC in the same manner as if the veteran's death were service connected, under certain specific conditions. VA shall pay DIC under 38 U.S.C. � 1318 to the surviving spouse of a veteran who dies not as the result of his own willful misconduct, and who at the time of death was in receipt of or "entitled to receive" compensation for a service-connected disability rated totally disabling provided that (1) the disability was continuously rated totally disabling for a period of at least 10 consecutive years immediately preceding death; (2) the disability was continuously rated totally disabling since the veteran's release or discharge from active duty and for at least five years immediately preceding death; or (3) if the veteran was a former prisoner of war who died after September 30, 1999, the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. The total disability rating may be either schedular or based upon unemployability. 38 U.S.C. � 1318(b); 38 C.F.R. � 3.22.

After a careful review of the evidence of record, the Board finds that the appellant's claim for entitlement to DIC pursuant to 38 U.S.C. � 1318 is not warranted.

At the time of the Veteran's death, service connection was not in effect for any disabilities, and therefore the Veteran's combined disability rating at the time of death, and for the entirety of his life prior thereto, for the purposes of eligibility for DIC pursuant to 38 U.S.C. � 1318 was zero. It is clear that the Veteran was not rated totally disabled for a continuous ten-year period prior to his death, or that he was continuously rated totally disabled for a period of not less than five years from the date of his discharge from active duty. In addition, there is no evidence showing the Veteran was a former prisoner of war. Furthermore, it has not been shown nor has it been alleged that the Veteran was "entitled to receive" compensation for a service-connected disability rated totally disabling for the appropriate time periods. 38 C.F.R. � 3.22(b).

The appellant has not alleged any applicable theory of entitlement to benefits under 38 U.S.C. � 1318 to include a theory of clear and unmistakable error in a prior final rating decision, reopening of a claim based on newly received service records, or absence of receipt of total disability benefits due to non-waiver of concurrent retirement payments. See 38 C.F.R. � 3.22.

As the evidence shows the Veteran was not continuously rated totally disabled during the 10 years preceding his death, was not continuously rated totally disabled since release from active duty, and was not a former prisoner of war, the legal criteria for DIC pursuant to 38 U.S.C. � 1318 have not been met. Accordingly, entitlement to DIC pursuant to 38 U.S.C. � 1318 is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

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

The appellant seeks service connection for the Veteran's cause of death.

Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. � 1310; 38 C.F.R. � 3.5.

The death of a veteran will be considered to have been due to service-connected disability where the evidence establishes that a disability was either the principal or contributory cause of death. 38 C.F.R. � 3.312(a). A principal cause of death is one which, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. � 3.312(b). A contributory cause of death is one which contributed substantially or materially to cause death or aided or lent assistance to the production of death. 38 C.F.R. � 3.312(c).

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

In the instant case, at the time of his death, the Veteran was not service connected for any of the diseases listed as primary or contributory causes of death. Thus, the Board must consider the laws that otherwise govern establishing service connection for a disability.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. � 1110; 38 C.F.R. � 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For certain chronic diseases, to include cirrhosis of the liver, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. � 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. � 3.303(b).

The Veteran's service personnel records show he was at Camp Lejeune between September 1965 and October 1966. He is, therefore, presumed to have been exposed to contaminants in the water supply during that service. 38 C.F.R. � 3.307(a)(7)(iii). There is a presumption that certain diseases are related to exposure to contaminated water at Camp Lejeune. Those diseases include kidney cancer, liver cancer, Non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. � 3.309(f).

The Veteran's claimed liver disorder is not a disease subject to presumptive service connection from exposure to contaminated water at Camp Lejeune under 38 C.F.R. � 3.309(f). Service connection, therefore, cannot be awarded on a presumptive basis related to the Veteran's in-service exposure to contaminated waters at Camp Lejeune.

As to the claim based upon Agent Orange exposure, the Veteran's service personnel records show he arrived at DaNang, Vietnam on April 10, 1965. He is, therefore, presumed to have been exposed to herbicides in service. 38 C.F.R. � 3.307(a)(6)(iii). There is also a presumption that certain diseases are related to exposure to herbicides in service. Neither cirrhosis, nor any other liver disorder is on the list of those diseases presumed to be connected to in-service herbicide exposure. 38 C.F.R. � 3.309(e). Service connection, therefore, cannot be awarded on a presumptive basis related to the Veteran's in-service herbicide exposure.

The United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for any given disability, the claim must nonetheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 Fed.3d 1039 (Fed. Cir. 1994).

When the evidence is evenly balanced or approximately so with regard to whether service connection is warranted, VA shall resolve reasonable doubt in favor of the claimant. 38U.S.C. �5107; 38C.F.R. ��3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). To deny a claim on its merits, the evidence must persuasively weigh against the claim. Id.) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

Turning to the relevant evidence of record, the Veteran died in February 2018. The death certificate lists a primary cause of death of as a closed head injury due to a fall with a contributory cause of cirrhosis of the liver due to alcohol abuse. 38 C.F.R. � 3.312(b), (c).

During his lifetime, the Veteran was not service connected for any disabilities. As such, the ultimate question before the Board is whether the diseases that led to the Veteran's death were incurred in or aggravated by service or otherwise etiologically related to any in-service illness, injury, or event.

Based on the analysis below, the Board finds that the evidence persuasively weighs against the claim, and service connection for the Veteran's cause of the death is not warranted.

As an initial matter, the Board acknowledges the appellant's contention that the Veteran's liver cancer was caused by his prostate cancer that she asserts is related to service. However, neither liver cancer nor prostate cancer is listed as a primary or contributory cause of death on the Veteran's death certificate. As such, this contention will not be addressed further.

Regarding the Veteran's closed head injury, the available medical records show the Veteran suffered a mechanical fall at his home in February 2018 that resulted in a closed head injury. Immediately following his fall, he entered the hospital for treatment. The appellant does not contend nor does the evidence show that that the Veteran's closed head injury was incurred in or caused by an event, injury or illness in service.

Turning to the Veteran's contributory cause of death, cirrhosis of the liver, post-service private treatment records indicate that the Veteran was first diagnosed with cirrhosis of the liver in February 2018, following imaging studies performed upon admission to the hospital for treatment following his mechanical fall that showed he had extensive liver disease. His family elected comfort care and the Veteran passed away the next day.  See February 2018 private treatment records.

There is no evidence of a nexus between the Veteran's closed head injury or cirrhosis of the liver and service. While the appellant has asserted that there is a direct relationship between his disability and service, she is not competent to provide such an opinion as to do so requires medical training and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, the assertions of a direct causal relationship are entitled to no weight. None of the medical evidence in the file at all indicates that the Veteran's closed head injury or cirrhosis of the liver is causally linked to his period of service. In light of the foregoing, the Board finds that there is no competent and credible evidence of an in-service injury or disease or of a nexus between the Veteran's cirrhosis of the liver and service. As such, service connection for cirrhosis of the liver on a direct basis is not warranted. 38 C.F.R. �� 3.102, 3.303.

Additionally, the Board notes that cirrhosis of the liver is considered to be a chronic disease for VA purposes. 38 C.F.R. � 3.309(a). However, the medical evidence does not show, and the appellant has not argued, that the Veteran's closed head injury or cirrhosis of the liver manifested within one year of his separation from service or that he has experienced continuous symptoms of a closed head injury or cirrhosis of the liver since service. Further, the medical evidence does not reflect an onset of any of the disability in service or within the first post-service year, or that there have been continuous symptoms of a closed head injury or cirrhosis of the liver. Indeed, private treatment records reflect that the disabilities had their onset well after the Veteran's October 1966 separation. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted in this case. 38 C.F.R. �� 3.303(b), 3.309(a).

In making this determination, the Board is cognizant that a medical opinion concerning the appellant's claim for service connection for the Veteran's primary cause of death of a closed head injury nor the contributory cause of cirrhosis of the liver has not been obtained. As explained above, the weight of the evidence suggests that the Veteran's closed head injury and cirrhosis of the liver first manifested several years after service. Moreover, there is no medical or lay evidence to suggest that either condition is otherwise related to an in-service event, injury or disease. As there is no reasonable possibility that a medical opinion would help substantiate the appeal, the Board finds that further development is not necessary. See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (VA is not required to provide a medical examination when there is no credible evidence of an in-service event, injury, or disease); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

In summary, the claim of entitlement to service connection for the cause of the Veteran's death is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Although the Board is deeply sympathetic to the appellant, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. See 38 U.S.C. � 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the denial of this claim does not in any way diminish the Veteran's honorable service to our country.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rosenthal, Ariana

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: K PARAKKAL

disposition: granted

condition: ptsd

benefit: tdiu

text:
Citation Nr: 23019000
Decision Date: 03/28/23	Archive Date: 03/28/23

DOCKET NO. 18-54 552
DATE: March 28, 2023

ORDER

A 70 percent disability evaluation for posttraumatic stress disorder (PTSD) from August 2, 2016, to July 2, 2019, is granted.

A 100 percent disability evaluation for posttraumatic stress disorder (PTSD) from August 2, 2016, to July 2, 2019, is denied.

A disability evaluation in excess of 70 percent for PTSD from August 23, 2019, is denied.

A total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) from August 2, 2016, is granted.

FINDINGS OF FACT

1. For the period from August 2, 2016, to July 2, 2019, the Veteran's PTSD caused occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.

2. At no time prior to July 2, 2019, was the Veteran's PTSD manifested by total occupational and social impairment due to symptoms such as grossly inappropriate behavior, persistent delusions or hallucinations, inability to perform activities of daily living, disorientation to time or place, or memory loss in forgetting the names of close relatives.

3. At no time subsequent to August 23, 2019, was the Veteran's PTSD manifested by total occupational and social impairment due to symptoms such as grossly inappropriate behavior, persistent delusions or hallucinations, inability to perform activities of daily living, disorientation to time or place, or memory loss in forgetting the names of close relatives.

4. The Veteran's service-connected disabilities have precluded substantially gainful employment consistent with his education and occupational experience from August 2, 2016.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in favor of the Veteran, for the time period from to August 2, 2016, to July 2, 2019, the criteria for a 70 percent disability for PTSD were met.  38 U.S.C. � 1155; 38 C.F.R. �� 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. For the time period prior to July 2, 2019, the criteria for a disability rating greater than 70 percent for PTSD have not been met.  38 U.S.C. � 1155; 38 C.F.R. �� 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411.

3. For the time period subsequent to August 23, 2019, the criteria for a disability rating greater than 70 percent for PTSD have not been met.  38 U.S.C. � 1155; 38 C.F.R. �� 3.102, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9411.

4. Resolving reasonable doubt in favor of the Veteran, the criteria for a TDIU have been met since August 2, 2016.  38 U.S.C. � 1155; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16, 4.18.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1971 to May 1971.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December2017 rating decision, denying the Veteran's claim for total disability benefits for individual unemployability (TDIU) and assigning a 50 percent rating for PTSD.

The matter was remanded by the Board on several occasions, most recently in March 2020.  The requested development has been completed and the matter is ready for appellate review.

In a November 2019 rating determination, the RO increased the Veteran's disability evaluation for his service-connected PTSD to 100 percent as of July 2, 2019.  In the same rating determination, the RO then decreased the Veteran's PTSD evaluation from 100 to 70 percent effective August 23, 2019.  As such, the Board will address the Veteran's initial PTSD rating request for the time period up to July 2, 2019, and for the time period subsequent to August 23, 2019.  For the time period from July 2, 2019, to August 23, 2019, the Veteran received the full benefit sought on appeal.  Thus, that time period is not currently in appeal as it relates to the increased rating claim for the service-connected PTSD.

PTSD

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. � 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.  It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran.  See 38 C.F.R. � 4.3.

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. � 4.21.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The General Formula for Rating Mental Disorders, Diagnostic Code 9411, provides that a 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.  The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

A 100 percent evaluation is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. � 4.130, Diagnostic Code 9411.

The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating.  The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The Board must consider all symptoms of the veteran's condition which affect the level of occupational and social impairment.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002).

The Veteran maintains that the symptomatology associated with his service-connected PTSD warrants a disability evaluation higher than that which is currently assigned.

Time Period from August 2, 2016 to July 2, 2019

In conjunction with his claim, the Veteran was afforded a VA examination in April 2017.  At the time of the examination, the Veteran was noted to have dissociative reactions; persistent and exaggerated negative beliefs or expectations of oneself, others, or the world; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts; hypervigilance; exaggerated startle response; and clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The Veteran was also noted to have depressed mood; anxiety; disturbances in mood and motivation; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances, including a work or work-like setting.

The examiner also noted that the Veteran was alert and had normal grooming, hygiene, speech and thought process.  His thought content was non-delusional, and he denied having any plan to harm himself or others.  His affect was dysphoric.  The Veteran was noted to be married but his wife lived in Cambodia.  He lived alone.

At the time of an August 2017 outpatient visit, the Veteran reported that his PTSD symptoms were uncontrollable and that he felt like he was climbing the walls and going to explode towards people.

At the time of a February 2018 psychiatric intake evaluation, the Veteran reported that he moved often to start over.  The Veteran noted experiencing the following trauma-related symptoms: intrusive thoughts, nightmares (2-3 x week), physiological reactions (e.g., shaking, sweaty palms, and nausea) to cues, avoidance, strong negative beliefs (e.g., "I'm weak and vulnerable," cannot trust the police), persistent negative emotions (fear, anger), difficulty experiencing positive emotion, hypervigilance, exaggerated startle, and poor concentration.  He avoided police officers, people arguing (even on TV), and crowds.  His symptoms increased in severity when he was in a city rather than a rural area.  These symptoms had impacted his functioning because he constantly moved around the country and avoided interacting with most people.  The Veteran noted prior difficulties with depression when living in cities for too long.  He stated that his symptoms correlated with increased feelings of threat (generally, increased trauma-related symptoms) and dissipated when he went to more rural areas.  He endorsed current passive suicidal ideation ("why even keep trying") but denied plan or intent.

The Veteran reported having a good relationship with his wife; however, it was an arranged marriage and she lived in Cambodia while he lived by himself in the United States.  She had never lived in the United States with him.  He was living on his boat alone and income sources included VA disability, social security, and union pension.  He also spent some of his time in his camper on land.  The Veteran had two friends in San Diego, who were also veterans, as well as a few friends in San Luis Obispo that he met through his treatment group.

Mental status examination revealed he was adequately dressed and groomed, wearing sweatpants, and a shirt.  He had a long, unkempt beard.  He was cooperative and polite and oriented as to person, place, and time.  Intellectual/Cognitive functioning was intact.  Memory was good.  Mood was euthymic and affect was appropriate.  Suicidal/Homicidal ideation was not present.  Speech had a normal rate/rhythm.  Thinking processes was circumstantial, tangential.  Content of thought showed no psychosis.  Insight was good and judgment was intact.

In a March 2018 statement in support of claim, the Veteran reported that as to suicidal ideation, while he did not consider himself a wrist slasher or bridge walker, he was growing more and more tired as the suffering continued.  To the point where he wondered why even bother.  He felt lost and did not know what to do next.  He noted that stress caused confusion and that he could not think clearly or clear his mind enough to speak.  His thoughts were scrambled, and he would get upset when someone asked a question he could not seem to answer.  He also noted that his breathing would become radical and that he could not collect his thoughts.  As to neglect of personal hygiene and care, the Veteran stated he lived alone so he did not care.  He showered once a week and wore the same clothes for days.  He did not brush his teeth and wore the same type of clothes every day.  He lived on his boat or stayed in an ambulance he had converted to a camper.  He avoided crowds and could not take noises.  He isolated and did not want to be bothered with others.  He noted that while he was married, his wife lived in Cambodia as he could not feel trapped and had the need to change his surroundings.  He needed to find a secluded area.  He only had a few friends, but he could not deal with their tears.

At the time of a July 2018 VA examination, the Veteran was noted to have recurring distressing memories and dreams; persistent and exaggerated negative beliefs or expectations of oneself, others, or the world; a persistently negative state; markedly diminished interest or participation in significant activities; irritable behavior and angry outbursts; problems with concentration; sleep disturbance; and clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The Veteran was also noted to have depressed mood, chronic sleep impairment, impaired judgment, disturbances in mood and motivation, and difficulty in establishing and maintaining effective work and social relationships.  The examiner indicated that the Veteran's PTSD caused occupational and social impairment with reduced reliability and productivity.

For the time period prior to July 2, 2019, the Board will resolve doubt in favor of the Veteran and find that his PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, warranting a 70 percent disability evaluation.

Although the April 2017 and July 2018 VA examiners indicated that the overall PTSD symptomatology resulted in symptoms more closely approximating that required for a 50 percent evaluation, both examiners did check the box indicating that the Veteran's PTSD caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.  In addition, the symptoms reported by the Veteran and noted at the time of the VA examinations and in the February 2018 psychiatric intake report demonstrate some criteria that are listed as part of the 70 percent criteria.  Moreover, the Veteran, while being married, had little interaction with his spouse, who was living in a foreign country and had done so for many years, and had little to no interaction with his family and few friends.  Based upon the above, the Board will resolve the evaluation in favor of the Veteran finding that his symptoms more closely approximated that for a 70 percent disability evaluation throughout this time period.

The Board has reviewed the evidence of record, lay and medical, and finds that the Veteran did not meet the criteria for a higher 100 percent disability rating for PTSD for this time period.  The record did not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD.

As to the VA examinations performed during this time period, the examiners found that the Veteran's PTSD caused no more than occupational and social impairment with reduced reliability and productivity, which is the criteria for a 50 percent evaluation.  There were no findings of total social and occupational impairment during this frame.  There were also no findings of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name during this time frame.  While the Veteran reported having suicidal thoughts, he indicated that he did not have any plans or intent.  He had remained married throughout the entire time and has reported having a few friends.

The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating under DC 9411 for this time period.  38 C.F.R. � 4.130.  The weight of the evidence shows that the Veteran has not had total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name for any period.

For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 70 percent for PTSD prior to July 2, 2019.  The benefit of the doubt doctrine is not for application.  See 38 U.S.C. � 5107; 38 C.F.R. �� 4.3, 4.7.

Time Period from August 23, 2019 to the Present

Review of the record reveals that at the time of an August 23, 2019 VA examination, the Veteran's PTSD was noted to cause occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment and thinking.

The Veteran was noted to have been married three times.  He had 4 children with his first wife.  He had been married to his current wife for 10 years.  She lived in Cambodia.  He stated that he traveled to Cambodia parts of the year to spend time with her.  He currently lived in his camper.  He stated that "I usually stay here during warm seasons and then I go back to Cambodia during winter."

The Veteran's PTSD was noted to cause depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene.

At the time of a September 2020 VA examination, the Veteran's PTSD examination was again noted to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

The examiner indicated that the Veteran reported that since the last VA examination, he had bought property with a house in Oregon.  He had been unable to visit his wife due to the Corona Virus.  Both he and his wife were happy with his arrangement.  He hoped to convince her to come to the States.  He lived alone on land he was buying.  He was homeless and lived in his truck or on boat prior to buying property.  He closed on the land purchase in August and had his boat up for sale over on the coast.  He felt he was now entering a period of stability.

His PTSD caused anxiety; suspiciousness; impairment in short and long term memory; and impaired impulse control.

Mental status examination revealed the Veteran drove himself to the exam site and was on time for the exam.  He presented as a roving man, skin (neck, arms, legs) sunburned deep brown.  He was clean, casually dressed in white sleeveless black t-shirt and khaki shorts wearing Keene-type sandals.  He also wore a patterned skull cap, mask (due to COVID19 requirements), and some jewelry.  He was fully cooperative, affable, and exhibited good range of appropriate affect.  Thinking was linear without dissociation, he answered questions directly and then about half the time started reminiscing in a somewhat tangential manner about the past surrounding situation that they were discussing.  There was normal psychomotor status, no indicators of anxiety, no stuttering, stammering, or word finding difficulties.  He was near hostile.  He himself explained the reason for the exam very succinctly.  Speech was easy to understand, and vocabulary and syntax reflected at least average intelligence.  Mental status was not limited, MOCA of 28/30. He had a relaxed posture.  He depicted himself as a wanderer throughout life.  One whose experience caused him to feel independent in the outdoors, enjoyed living on his boat, chose to buy an acreage where he can see anyone approaching -it was very rural, isolated, but he still showed hypervigilance by double and triple checking his "perimeter" nightly.  He had floated the globe literally since discharge, relationships always were replaced after they became problematic.  He considered himself a person of the world, not just the U.S.  He was fully independent in activities of daily living, both basic and instrumental.  He took in stride physical problems coming with age.  He lived a very isolated life - did not express distress about being unable to return to wife's home country.  He had minimal contact with family of past.  He enjoyed solitary fishing, hunting.  For identification, he presented a currently valid Oregon Driver's license with photo.  He described road rage a couple years ago, when he drove to visit his son.  He self-aggrandized in relating stories of past.  The examiner indicated that the Veteran presented as an extremely self-reliant individual who "walks to the beat of his own drummer," has no desire to engage in community affairs or even neighborly friendships.  Being a nonconformist is a large part of his self-image. The Veteran asserted that "I don't like walls or barriers of any kind."

The Board has reviewed the evidence of record, lay and medical, and finds that the Veteran did not meet the criteria for a higher 100 percent disability rating for PTSD for this time period.  The record did not indicate total occupational and social impairment, due to symptoms of such a severity as described for a 100 percent evaluation for PTSD.

As to the VA examinations performed during this time period, the examiners found that the Veteran's PTSD caused no more than occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment and thinking, which is the criteria for a 70 percent evaluation.  There were no findings of total social and occupational impairment during this frame.  There were also no findings of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name during this time frame.  While the Veteran reported having suicidal thoughts, he indicated that he did not have any plans or intent.  He has remained married throughout the entire for appeal and has reported having a few friends.

The Board concludes that the Veteran's disability picture does not more nearly approximate the criteria for a 100 percent rating under DC 9411 for this time period.  38 C.F.R. � 4.130.  The weight of the evidence shows that the Veteran has not had total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name during this time frame.

For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 70 percent for PTSD from August 23, 2019.  The benefit of the doubt doctrine is not for application.  See 38 U.S.C. � 5107; 38 C.F.R. �� 4.3, 4.7.

TDIU Prior to July 2, 2019

A TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent.  38 C.F.R. � 4.16(a).  In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability.  The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation.  38 C.F.R. � 4.16(a).  In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  38 C.F.R. � 4.16(b); see 38 C.F.R. �� 3.340, 3.341, 4.15.  In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment.  In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria for determining unemployability include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992).

The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU.  38 U.S.C. � 1155; 38 C.F.R. �� 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).  For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating.  The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability.  Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Furthermore, marginal employment shall not be considered substantially gainful employment.  Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  Consideration shall be given in all claims to the nature of the employment and the reason for termination.  38 C.F.R. � 4.16(a).

For the time period in question, service connection was in effect for PTSD, rated as 70 percent by virtue of the above decision; postconcussion syndrome, rated as 10 percent disabling; and a deviated septum, rated as noncompensable.

Based upon the above assigned disability evaluations, the Veteran met the schedular criteria for consideration under 38 C.F.R. � 4.16(a).

The Veteran maintains that he is unemployable as a result of his service-connected disabilities.

(Continued on the next page)

?

The Board notes that the Veteran's occupational history demonstrates that he has performed manual labor throughout his lifetime, including many years as a welder.  While the Veteran retired due to injuries sustained during his employment, which prevent him from doing manual labor, his PTSD and postconcussion syndrome have been shown to cause significant impact on his employability, as noted in all VA examinations.   The Veteran has been shown to be unable to interact with others other than a small group of friends.  He remains isolated and prefers to be alone.  Moreover, the July 2019 VA examiner, when noting the Veteran's employment history, specifically indicated that the Veteran had been unable to establish or maintain gainful employment in 15 years due to mistrust, hypervigilance and explosive anger.  He stated that his anxiety was so severe that when he had to interact with people for prolonged periods of time, he had fainting spells, vasovagal in nature.  The examiner indicated that because of this history of violence and severe anxiety and PTSD, the Veteran would be unable to work with others, complete tasks, or regulate his emotions in the workplace.

Based upon the above findings, it is evident that the Veteran's service-connected disabilities prevent him from obtaining and securing substantially gainful employment.  The Board finds that the weight of the evidence, including the physicians' findings, along with the Veteran's statements and work history, demonstrate that he has met the criteria set forth in � 4.16, and that a TDIU based upon service-connected disabilities from August 2, 2016, is warranted.

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. S. Kelly, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: A C MACKENZIE

condition: shoulder

disposition: remanded

text:
Citation Nr: 23020000
Decision Date: 03/31/23	Archive Date: 03/31/23

DOCKET NO. 18-49 999
DATE: March 31, 2023

ORDER

Entitlement to a rating in excess of 50 percent for service connection posttraumatic stress disorder (PTSD) is denied.

Entitlement to service connection for a left shoulder disability is denied.

Entitlement to service connection for a right shoulder disability is denied.

REMANDED

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

FINDINGS OF FACT

1. The evidence reflects that the Veteran's PTSD symptoms do not cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. The competent evidence does not demonstrate that the Veteran's left shoulder disability is attributable to his active service or to any incident of service.

3. The competent evidence does not demonstrate that the Veteran's right shoulder disability is attributable to his active service or to any incident of service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating for PTSD in excess of 50 percent for the period on appeal are not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for service connection for a left shoulder disability are not met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. � 3.303(a), (b), (d).

3. The criteria for service connection for a right shoulder disability are not met.  38 U.S.C. �� 1110, 5107; 38 C.F.R. � 3.303(a), (b), (d).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from May 2000 to November 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  These matters were previously before the Board in August 2019.  In the August 2019 Board decision, the issues were remanded for further development.

Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. TDIU will be addressed below.  See March 2016 Notice of Disagreement.

1. PTSD

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate DCs.  See 38 U.S.C. � 1155; 38 C.F.R. � 4.1.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  See generally Hart v. Mansfield, 21 Vet. App. 505 (2007).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7.

An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date.  38 U.S.C.� 5110(b)(2); 38 C.F.R. � 3.400(o)(2).  When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application.  Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. � 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998).

Evaluations under 38 C.F.R. � 4.130 are "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).  The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'"  Vazquez-Claudio, 713 F.3d at 117-18 ; 38 C.F.R. � 4.130, DC 9411.

Under the General Rating Formula for mental disorders, a 50 percent evaluation is contemplated where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id.

When evaluating disabilities arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. � 4.126(a).  However, the rating agency shall not assign an evaluation solely based on social impairment.  38 C.F.R. � 4.126(b).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  38 C.F.R. � 4.2.

For the period on appeal, the Board finds the evidence is against concluding that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas.  The evidence of record is negative for most symptoms consistent with that level of impairment, including suicidal ideation; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-constant panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect to personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships.

An October 2015 VA examination was completed.  Here, the examiner found the Veteran's PTSD amounted to occupational and social impairment with reduced reliability and productivity.  The examiner noted the Veteran's symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less, mild memory loss, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting.  See October 2015 Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ).

A February 2020 VA examination was completed.  Here, the examiner found the Veteran's PTSD amounted to occupational and social impairment with reduced reliability and productivity.  The examiner noted the Veteran's symptoms included anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.  The examiner noted that the Veteran reported memory problems, but none were noted during the examination.  Attention and concentration were adequately maintained, thinking was focused and logical, insight and judgment were adequate, psychotic symptoms were denied and not observed, and intellectual abilities were estimated to be in the average range.  The examiner also noted that the Veteran would have difficulty maintaining a work schedule due to emotional problems and can be expected to miss two to three days per month.  The examiner determined the Veteran could not work with the public and needs employment with few social demands.  See February 2020 VA Review PTSD DBQ.

Based on the evidence of record during the period on appeal, the evidence is against an evaluation in excess of 50 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record.  The evidence does not show that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood.  In fact, the Veteran did not endorse the majority of symptoms above required for the higher 70 or 100 percent ratings.

Notably, the Veteran on a single occasion denied suicidal ideation but admitted to wanting "to die, but would not commit suicide."  See December 2018 VA Primary Care Note.  After review of the record, the Board finds the Veteran did not raise and denied any thoughts of suicidal ideation and the VA examiners did not find evidence of suicidal ideation.  The Board finds this single claim of possible suicidal ideation is insufficient alone to warrant a higher rating.  Furthermore, the medical evidence of record does not contain evidence that the Veteran neglected his personal hygiene or appearance and was consistently oriented to time and place.  There is no evidence of obsessional rituals, near-constant panic or depression, impaired impulse control, or inability to establish and maintain effective relationships.

In reaching the above conclusions, the Board has not overlooked the Veteran's statements found in the record.  In this regard, the Veteran's statements as to the severity of his PTSD are credible, and he is certainly competent to report how he believes his PTSD has affected him, including describing his symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  However, the Board finds more competent and credible the medical opinions provided by the clinical providers, as discussed above, in rendering a decision as to the severity of the Veteran's PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and examinations.

For the above reasons, the evidence persuasively weighs against the award of a rating in excess of 50 percent for PTSD.  Therefore, the benefit of the doubt doctrine, see 38 U.S.C. � 5107(b), is not for application as to this claim.  Lynch, 999 F.3d at 1391.  Accordingly, the appeal as to entitlement to a rating in excess of 50 percent for PTSD is denied.

Service Connection

Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

1. Bilateral Shoulder Disability

The question for the Board is whether the Veteran has a diagnosable left and/or right shoulder disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.  The Board concludes that, while the Veteran has been diagnosed with a variety of left and right shoulder conditions, to include left bicipital tendonitis, bilateral rotator cuff tendonitis, left labral tear, and bilateral osteoarthritis, the evidence is against a finding that these shoulder conditions began during active service, or are otherwise related to an in-service injury, event, or disease.  38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38C.F.R. ��3.303(a), (d), 3.310.

To begin, service treatment records do not show that the Veteran sought treatment for or was diagnosed with symptoms of a left or right shoulder disability.  There is no documentation of any treatment for symptoms of a left or right shoulder condition.  Moreover, there is no documentation of treatment of a left or right shoulder condition.  Accordingly, without any competent evidence to support a determination that he developed a left or right shoulder condition in service, the Board finds that service connection on a direct basis pursuant to 38 C.F.R. � 3.303(a) is denied.

The Veteran has provided reports regarding left and right shoulder pain; however, available medical records do not document any treatment for a left and right shoulder conditions until 2018.  The first claim of left and right shoulder condition was first noted in the March 2015 claim for entitlement to service connection.  There is no medical evidence that supports a determination that the left or right shoulder symptoms began within the one-year presumptive period for chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Furthermore, service connection also may not be granted based on continuity of symptomatology, as there is no evidence of the claimed disability in service or continuity of symptomatology since service.  Id.

The Veteran was first afforded a VA examination in February 2020 to evaluate the nature and etiology of the claimed left and right shoulder disabilities, during which he reported he began having bilateral shoulder pain when he was carrying sacks and running while in service.  The Veteran stated that while using weapons he had increased shoulder pain.  The Veteran reported he once went to get pain medication for his shoulder while in service, but due to the busyness of his position he was unable to seek medical care.  Range of motion testing confirmed that the Veteran's shoulders had normal motions.  The examiner opined that it was less likely than not that the left or right shoulder disabilities were incurred in or otherwise attributable to service.  In support thereof, the examiner noted that the MRI results of the shoulders show more acute injuries that result from an injury rather than from degenerative changes of wear and tear.  Since the Veteran does not have a specific injury or was not seen for his shoulders while in service, it is less likely than not that his shoulder conditions incurred in or caused by his time in service.  The examiner noted that heavy lifting can cause tearing of the rotator cuff and bicep tendon, but it would be evident of a specific incident.  See February 2020 VA Shoulder and Arm Conditions Disability Benefits Questionnaire (DBQ), February 2020 VA Medical Opinion DBQ.

Pursuant to the Board's August 2019 remand, the RO was to request the Veteran to complete a VA Form 21-4142 for all non-VA medical providers.  The RO sent this request to the Veteran in November 2019 and against in December 2019.  In a December 2019 statement, the Veteran stated that he does not have any more medical records to submit and wants to proceed with his claims.  See December 2019 Statement in Support.  As such, the Board finds this directive has been substantially complied with.

Upon review of the available evidence, the Board does not find that service connection is warranted for a left or right shoulder disability.  The Veteran's contention that his left and right shoulder disabilities are attributable to service was refuted by the February 2019 VA examiner, who found no evidence that the Veteran injured either shoulder during service.

The Board further notes that the Veteran has submitted no objective medical evidence in support of his assertion that his left or right shoulder disabilities are attributable to service.  While the Veteran's contentions regarding the onset of his left and right shoulder symptomatology are credible, he is not competent to provide an opinion regarding the etiology of the disabilities, as he has not shown that he possesses the medical training or credentials to competently render such an opinion.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As such, his lay assertions are far outweighed by the highly probative etiology opinion of the February 2019 VA examiner.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

In summation, the Board must rely on the medical evidence of record, which overwhelmingly weighs against a grant of service connection in this matter.  Accordingly, the Board finds that no medical nexus exists between the Veteran's left and right shoulder disabilities and service.  The claim is denied, and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C. �� 1110, 1131, 5107(b); 38 C.F.R. � 3.303(d).

REASONS FOR REMAND

1. TDIU

The Board finds a remand is warranted for the claim for TDIU for further development.  Specifically, the Board finds a VA Form 21-8940 has not been completed in conjunction with his claim.  Before the Board may fairly adjudicate the Veteran's TDIU claim, the Veteran must be requested to submit a VA Form 21-8940.

The matter is REMANDED for the following action:

Furnish the Veteran with a 38 C.F.R. � 3.159(b) notice letter as to TDIU, with a VA Form 21-8940 for him to complete and return to VA, and a VA Form 21-4192 to be completed by his last employer.

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Glaeser

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: MARISSA CAYLOR

condition: hip

text:
��Citation Nr: 23021000

Decision Date: 04/05/23	Archive Date: 04/05/23

DOCKET NO. 17-51 948

DATE: April 5, 2023

REMANDED

Entitlement to service connection for a right hip disability, to include blunting of the labrum and degenerative changes is remanded.

Entitlement to service connection for a left hip disability, as secondary to a right hip disability is remanded.

Entitlement to service connection for bilateral hearing loss is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1999 to July 2000.

This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) rating decision dated in October 2015.

The Veteran testified before a Veterans Law Judge (VLJ) in August 2020. A copy of the transcript has been associated with the claims file. The VLJ issued an April 2021 Board decision, which remanded the Veteran's claims for further development. The VLJ subsequently retired and, hence, is no longer employed by the Board.

The Veteran was afforded another hearing before the Board, which was held by the undersigned VLJ in January 2023. The transcript is of record.

In February 2022, the RO granted service connection for PTSD and tinnitus. Therefore, those issues are no longer on appeal.

1. Entitlement to service connection for a right hip disability, to include blunting of the labrum and degenerative changes is remanded.

2. Entitlement to service connection for a left hip disability, as secondary to a right hip disability is remanded.

At his Board hearing, the Veteran stated that he went to the VA last month and got an MRI and X-rays for his hips. The Veteran expressed that he was prescribed muscle relaxers and steroids for his arthritis. After review, the Board finds that there are no treatment records from this time period in the record. Accordingly, the Board will remand for this additional development and to obtain any outstanding VA treatment records.

3. Entitlement to service connection for bilateral hearing loss is remanded.

As discussed above, the Board is remanding to obtain additional VA treatment records. As any such records are potentially relevant to this issue, the Board must defer adjudication of it until after VA treatment records have been obtained.

The matters are REMANDED for the following action:

1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In particular, the Board notes that at the January 2023 hearing, the Veteran testified that he sought treatment at the VA within the last month. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file.

2. After completing #1, schedule the Veteran for a VA examination regarding the bilateral hips. The examiner should review the file, including the Veteran's hearing testimony and this remand.

The examiner should answer the following:

(a)	Clarify the nature of the right and left hip disabilities the Veteran has had since filing his claim for SC prior to the October 2015 rating decision on appeal.

For each identified diagnosis, the examiner should opine:

(b)	Whether it at least as likely as not (likelihood in approximate balance, if not greater) (i) began in service; (ii) manifested within one year after separation from active service; or (iii) is otherwise related to active service?

(Continued on the next page)

?

The examiner should address the Veteran's reports regarding injuries while playing football and during physical therapy; that he attempted to get treatment from VA in 2001 and 2007 and 2008 and self-treated his pain with alcohol; that in 2014 a specialist told him that his scar tissue indicated that he incurred a hip disability in service; and that the low back pain identified in his service treatment records was actually hip pain, which he later learned after seeing an orthopedist.

Please provide a complete rationale and medical explanation for each opinion. If speculation would be required, the examiner should explain why.

Marissa Caylor

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.D.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: J KIRBY

benefit: reduction

condition: gi

text:
��Citation Nr: 23022000

Decision Date: 04/11/23	Archive Date: 04/11/23

DOCKET NO. 19-16 831

DATE:       April 11, 2023

ORDER

Restoration of the 10 percent disability rating for service-connected gastroesophageal reflux disease (GERD), status-post Nissen fundoplication surgery, is granted effective July 1, 2018.

REMANDED

Entitlement to an increased disability rating for GERD, status-post Nissen fundoplication surgery, rated as 10 percent disabling, is remanded.

FINDING OF FACT

The decision to reduce the rating for service-connected GERD, status-post Nissen fundoplication surgery from 10 percent to noncompensable (0 percent disabling) as of July 1, 2018, was not supported by the evidence contained in the record at the time of the reduction.

CONCLUSION OF LAW

The reduction of the disability rating for the Veteran's service-connected GERD, status-post Nissen fundoplication surgery from 10 percent to noncompensable (0 percent disabling) was not proper, and the 10 percent disability evaluation is restored from July 1, 2018. 38 U.S.C. �� 1155, 5103, 5103A, 5107; 38 C.F.R. �� 3.105, 3.344, 4.114, Diagnostic Code 7399-7346.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from March 1983 to October 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which decreased the rating assigned for GERD, status-post Nissen fundoplication surgery from 10 percent disabling to noncompensable (0 percent disabling), effective July 1, 2018. As the claim for an increased disability rating was raised during the appeal of the claim for restoration of the 10 percent disability for GERD, the Board also has jurisdiction over the claim of entitlement to an increased disability evaluation.

The Veteran's representative, Veterans of Foreign Wars of the United States, did not provide an informal hearing presentation subsequent to the certification of the Veteran's appeal. However, as the claim on appeal is being granted, no further argument from the Veteran's representative is required.

Reduction

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. � 3.344(a), (b). Those sections provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. � 3.344(c) specify that those considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction).

When a Veteran's disability rating is reduced by an AOJ without following the applicable regulation, the reduction is void ab initio. See Greyzk v. West, 12 Vet. App. 288, 292 (1999). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

Under 38 C.F.R. � 3.344(a), (b) the AOJ must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995).

In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C. � 5107; 38 C.F.R. � 3.102. However, the Court of Appeals for Veterans Claims (Court) has specified a different burden of proof with respect to ratings reductions claims. Because the issue in this case is whether the AOJ was justified in reducing the Veteran's rating, rather than whether the Veteran was entitled to "reinstatement" of the rating, the Board is required to establish, in compliance with 38 C.F.R. � 3.344(a), that a rating reduction was warranted. See Brown 5 Vet. App. at 420; see also Kitchens 7 Vet. App. at 325.

Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. � 1155; 38 C.F.R. � 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the Veteran, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. �� 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

1. Whether the reduction of the disability rating for service-connected GERD, status-post Nissen fundoplication surgery, from 10 percent to noncompensable, effective July 1, 2018, was proper.

In this case, the Veteran was assigned a 10 percent disability rating for GERD in a January 2005 rating decision, effective November 1, 2004. Therefore, when his rating was reduced effective July 1, 2018, it had been in effect for more than five years, and the provisions of 38 C.F.R. � 3.344 apply. See Brown, supra.

The reduction is void as the provisions of 38 C.F.R. � 3.344 were not met. A review of the April 2018 rating decision does not reveal that the AOJ considered the regulatory instructions and protections that govern the reduction of a rating in effect for five years or more as set forth in 38 C.F.R. � 3.344. The decision to reduce was not in accordance with the law as the AOJ did not make a finding that the VA compensation examination used as a basis for the reduction was as full and complete as the examination on which the 10 percent rating was established. In addition, the April 2018 decision did not contain any findings or discussion of whether there was a material improvement, and there were no findings that it was reasonably certain that the material improvement found would be maintained under the ordinary conditions of life. In this regard, the Board acknowledges that the AOJ, in reducing the Veteran's disability rating, indicated that it relied on July 2014 and March 2017 VA examinations to find that "sustained" improvement was demonstrated. However, to the extent that the March 2017 VA examination report reflects that the Veteran takes continuous medication for control of his symptoms, it appears that the AOJ also improperly based its finding of improvement on the ameliorative effects of medication. Further, the AOJ found that the Veteran's symptoms improved because he only reported experiencing one symptom of GERD; however, VA treatment records and private treatment records from the Rockwood Clinic indicate that the symptoms of his GERD are described as severe, and that these symptoms are alleviated by the medication. See generally 38 C.F.R. �� 4.114, Diagnostic Code 7346. VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012). Therefore, the AOJ erred in its April 2018 rating action by reducing the evaluation for GERD, status-post Nissen fundoplication surgery to 0 percent disabling, effective July 1, 2018.

Additionally, a review of the record shows that the Veteran's GERD was also adjudicated as an increased rating claim in the May 2019 statement of the case, instead of adjudicated solely on whether the reduction of the Veteran's 10 percent disability rating for his service-connected GERD was proper. By doing so, the AOJ improperly shifted the burden of proof from VA to the Veteran (to establish the evidentiary basis for why the reduction was not warranted and for a higher rating for the service-connected GERD). See Brown, 5 Vet. App. 413, 421 (1993) (when VA reduces a rating (under section 3.344), it bears the burden to establish that the rating reduction was warranted).

The law provides that, where a rating reduction was made without observance of the law, the erroneous reduction must be vacated, and the prior rating is restored. Schafrath, 1 Vet. App. at 595. As the Board finds that the April 2018 rating decision, which reduced the Veteran's disability rating for his service-connected GERD from 10 percent to noncompensable, was improper, the Veteran's 10 percent disability rating for his GERD, status-post Nissen fundoplication surgery is restored, effective July 1, 2018.

REASONS FOR REMAND

2. Entitlement to an increased disability rating for GERD, status-post Nissen fundoplication surgery, rated as 10 percent disabling, is remanded.

As an initial matter, additional relevant medical evidence was received and uploaded into the Veteran's claims file following the issuance of the statement of the case in May 2019. In this regard, the Board observes that VA treatment records have been received. A review of the electronic claims folder reflects that the Veteran did not waive consideration of evidence by the AOJ in the first instance. See 38 C.F.R. �� 19.37(a), 20.1305(c). As a result, the Veteran's claim for an increased disability evaluation for his service-connected GERD must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claims on appeal in the first instance. See 38 C.F.R. � 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued).

Additionally, the Veteran asserts that the symptoms of his service-connected GERD are more severe than presently evaluated. The Veteran has not been provided with a VA examination since March 2017. As the Veteran contends that his symptoms and manifestations have worsened since that time, the Veteran must be provided with a VA examination which consider the current severity of his service-connected GERD, status-post Nissen fundoplication surgery, on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity).

The matters are REMANDED for the following action:

1.  The AOJ should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran's service-connected GERD, status-post Nissen fundoplication surgery. The claims file should be made available to the examiner for review in connection with the examination.

The examination should include a statement as to the effect of the service-connected GERD on his occupational functioning and daily activities.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The VA examiner should provide a complete rationale for any opinions provided.

2. After completing all indicated development, the AOJ should readjudicate the claim on appeal, in light of all of the evidence of record. If the claim remains denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Brokowsky, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.