judge_norm: K PARAKKAL

text:
Citation Nr: 1129000
Decision Date: 08/05/11    Archive Date: 08/11/11

DOCKET NO.  06-30 271	)	DATE
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	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois

THE ISSUE

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

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1968 to September 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The Veteran testified at a Board video hearing at the RO in Chicago, Illinois in April 2008.  This transcript has been associated with the file.

In a May 2008 decision the Board denied entitlement to service connection for PTSD.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In November 2009 the parties filed a Joint Motion for Remand vacating the Board's denial of the Veteran's PTSD claim and remanding the matter for further proceedings.

The case was brought before the Board again in May 2010, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include verifying the Veteran's claimed stressors with the Joint Services Records Research Center (JSRRC).

Typically, there must be substantial compliance with the Board's remand directives or the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board notes that no stressor verification letter was sent to the JSRRC.  However, although there was not substantial compliance with the Board's remand directives by the AOJ, the Board is granting the claim of entitlement to service connection for PTSD, and as such, any noncompliance will be considered harmless error.

FINDING OF FACT

The Veteran's PTSD is related to service.
CONCLUSION OF LAW

PTSD was incurred in active service.  38 U.S.C.A. �� 1110, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102 (2010).

The Veterans Claims Assistance Act of 2000 (VCAA)

Since the Board is granting entitlement to service connection for PTSD, the entire benefit sought on appeal has been granted.  Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).
Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. � 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. � 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).

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

To prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability.  See 38 U.S.C.A. � 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.).

Effective July 13, 2010, VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  Specifically, the final rule amends 38 C.F.R. � 3.304(f) by providing that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (to be codified at 38 C.F.R. � 3.304(f)).  Arguably, the new regulation is applicable.

The Veteran contends that he suffers from PTSD as a result of the incidents he experienced while in-service.  See e.g., July 2005 VA examination.  The Veteran's service personnel records indicate that his military occupational specialty (MOS) was a clerk typist and that he served in Vietnam from June 1969 to September 1970.

In this case, the Veteran contends that while in-service he witnessed the torture of prisoners of war, came under attack from rockets, and had a close friend die in his arms.  See July 2005 VA examination.  He also reported that he continues to suffer from nightmares about his time in Vietnam, he avoids discussions of Vietnam, and keeps to himself.  Id.

At his April 2008 Board hearing the Veteran testified that he remembers his unit coming under attack by rockets and his friend was killed during this event.  He also reported frequent contact with prisoners of war.  He further testified that he suffers from nightmares and anger and does not have any friends.

Pursuant to the Board's May 2010 remand, the RO undertook PTSD stressor development.  In a July 2010 statement, the RO indicated that the Veteran's stressors were consistent with his service given that unit records reflected attacks on friendly outposts and occasional rocket attacks on installations including Gia Dinh.

The Veteran was afforded a VA examination in July 2005.  At this examination the Veteran reported he suffered from flashbacks, anxiety, sleep disturbances, and avoidance symptoms.  He also reported he saw a counselor for PTSD counseling through the VA.  The examiner determined the Veteran suffered from PTSD and assigned him a Global Assessment of Functioning score of 47 due to his decreased social functioning and his inability to work due to his PTSD.  See also August 2004 VA letter diagnosing the Veteran with PTSD.

A June 2006 letter from the Hines VA Medical Center (VAMC) reported the Veteran suffered from PTSD and his symptoms included sleep disturbances, hyperarousal, flashbacks, anger, and social isolation.  The letter also stated the Veteran had been receiving treatment for his PTSD since December 2003.

An August 2007 letter from the Hines VAMC also reported the Veteran was currently still suffering from PTSD, which no change in his symptoms or social functioning.

The Veteran was also afforded a VA examination August 2010 for his PTSD claim.  The examiner noted the Veteran's claims that while in-service he was under attack from rockets and he witnessed a friend die.  The examiner also noted the Veteran's history of depression.  After reviewing the claims file the examiner diagnosed the Veteran with major depressive disorder, recurrent with psychosis in partial remission, not related to service.  With regard to PTSD the examiner found the Veteran did not currently meet the requirements for a diagnosis under The Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  The examiner noted that the Veteran had previously been diagnosed with PTSD, however she stated PTSD can get better and go into remission.  She stated that if the Veteran had suffered from PTSD in the past, it was in remission at this time.

As noted above, to prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability.  See 38 U.S.C.A. � 1110; see also Degmetich, supra; McClain, supra.  Although the August 2010 VA examiner determined that the Veteran was not currently suffering from PTSD, she further stated that if he had previously suffered from PTSD, it was currently in remission.  The Board notes that the Veteran was diagnosed with PTSD on multiple occasions prior to this examination.  See e.g., July 2005 VA examination and June 2006 VAMC statement.  As such, the Board observes that even if he does not currently suffer from PTSD, the Veteran did suffer from it at various points during the appeal period.

With regard to the new regulations, the Board acknowledges that the Veteran has claimed that he was afraid of enemy attack while stationed in Vietnam.  The Veteran stated that his first impression of Vietnam was running for his life to the bunkers.  The Veteran also stated that his friend had his legs blown off during a rocket attack and ultimately died as a result.  See August 2010 VA examination.  A VA psychologist has confirmed that the Veteran suffers from PTSD as a result of his in-service stressors.  See e.g., August 2004 VAMC statement.  See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (to be codified at 38 C.F.R. � 3.304(f)).  Further, it is noted that the Veteran's service stressors have been verified by the RO.  See July 2010 statement from the RO.

In sum, as there is corroborative evidence that the Veteran suffered from PTSD during the appeal period and there is a competent medical opinion linking PTSD to service, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met.  As such, the Veteran's claim of service connection for PTSD is granted.

ORDER

Entitlement to service connection for PTSD is granted.

____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: K A BANFIELD

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

text:
Citation Nr: 1131000
Decision Date: 08/22/11    Archive Date: 09/07/11

DOCKET NO.  03-01 288	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant; K. M-C.

ATTORNEY FOR THE BOARD

N. J. Nardone, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1971 to December 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a psychiatric disorder.

This appeal was previously before the Board and the Board remanded the claim in February 2006 and September 2009 for additional development.  The case has been returned to the Board for further appellate consideration.

In December 2005, a Video Conference hearing before a Veterans Law Judge was held at the RO.  A transcript of that hearing is of record.

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

REMAND

After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim.

As noted above, in December 2005, a Video Conference hearing before a Veterans Law Judge was held at the RO.  However, in July 2011, the Board notified the Veteran that the Veterans Law Judge who conducted that hearing is no longer employed by the Board.  The Board offered the Veteran the opportunity to testify at another hearing, and requested that he elect whether to have another hearing.
In correspondence received during July 2011, the Veteran requested that he be scheduled for a Travel Board hearing at the RO before a member of the Board.  Such hearings are scheduled by the RO.  See 38 C.F.R. �� 20.700, 20.704(a).  Thus, the case must be returned to the RO to schedule the Veteran for a Travel Board hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board hearing before a Veterans Law Judge at the local RO, in accordance with his request.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2010).


judge_norm: KEITH W ALLEN

disposition: denied

disposition: granted

text:
Citation Nr: 1132000
Decision Date: 08/30/11    Archive Date: 09/07/11

DOCKET NO.  07-23 626	)	DATE
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	)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUES

1.  Entitlement to a compensable rating for left ear hearing loss.

2.  Entitlement to a rating higher than 10 percent for a left ankle disability prior to February 8, 2010, and a rating higher than 20 percent since.

REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Biswajit Chatterjee, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1976 to February 1986.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

In September 2008, as support for his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board, commonly referred to as a Travel Board hearing.

Because, however, the claims required further development before being decided on appeal, the Board remanded the claims in January 2010 to the RO via the Appeals Management Center (AMC).  This additional development included especially having the Veteran undergo VA compensation examinations to reassess the severity of his disabilities.

The Veteran had these additional VA compensation examinations in February 2010 for his left ankle disability and June 2011 for his left ear hearing loss.  And after considering the results, the AMC issued a July 2011 decision increasing the rating for his left ankle disability from 10 to 20 percent, but only retroactively effective from February 8, 2010, the date of that VA compensation examination for this disability.  The AMC continued to deny a higher (i.e., compensable) rating for his left ear hearing loss.  He since has continued with his appeal concerning this hearing loss claim, also requesting an even higher rating for his left ankle disability.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, unless he expressly indicates otherwise).  So this claim now concerns whether he was entitled to a rating higher than 10 percent for this left ankle disability prior to February 8, 2010, and whether he has been entitled to a rating higher than 20 percent since.

FINDINGS OF FACT

1.  The Veteran has had marked (not just moderate) limitation of motion of his left ankle since filing the claim at issue for a higher rating for this disability on September 8, 2006, especially when considering his pain.

2.  The 20 percent rating he now has for this left ankle disability is the highest possible schedular rating under the applicable diagnostic code, and this disability is not so exceptional or unusual as to render impractical the application of the regular rating schedule standards and warrant extra-schedular consideration.

3.  At worst, he has Level VII hearing loss in his left ear and Level I hearing loss in his non-service-connected right ear.

CONCLUSIONS OF LAW

1.  The criteria are met for the higher 20 percent rating, though no greater rating, for the left ankle disability as of the receipt of this increased-rating claim on September 8, 2006 (so earlier than the current effective date of February 8, 2010).  38 U.S.C.A. � 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 4.1-4 .14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2010).

2.  The criteria are not met, however, for a compensable rating for the left ear hearing loss.  38 U.S.C.A. � 1155 (West 2002 & Supp. 2010); 38 C.F.R. �� 4.1-4.14; 4.85, DC 6100, 4.86 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide.  See 38 C.F.R. � 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002).

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In this case, a letter satisfying the notice requirements of 38 C.F.R. � 3.159(b)(1) was sent to the Veteran in September 2006, prior to initially adjudicating his claims in November 2006, so in the preferred sequence.  The letter informed him of the evidence required to substantiate his claims and of his and VA's respective responsibilities in obtaining this supporting evidence.  The letter also complied with Dingess by as well discussing the disability rating and downstream effective date elements of his claims.  He has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of his claims.  And as the pleading party, he, not VA, has this burden of proof.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claims, which is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159; The RO and AMC obtained his VA outpatient treatment records and arranged for VA compensation examinations.  Notably, the AMC complied with the Board's January 2010 remand directives by arranging for VA compensation examinations in February 2010 and June 2011 to reassess the severity of his left ankle disability and left ear hearing loss.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Stegall v. West, 11 Vet. App. 268, 271 (1998).  And, indeed, it was primarily based on the results of that February 2010 VA examination that the AMC increased the rating for the left ankle disability as of the date of that examination.  Additional examinations are not needed since there is sufficient evidence to determine the severity of these disabilities in relation to the applicable rating criteria.  See 38 C.F.R. � 3.327(a) (2010); Caffrey v. Brown, 6 Vet. App. 377 (1994).  The mere passage of time since those examinations is not reason enough, alone, to require additional examinations.  Cf. Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

II.  Analysis-Whether the Veteran is Entitled to Higher Ratings for his Left Ankle Disability and Left Ear Hearing Loss

Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. � 4.2.  A "staged" rating is appropriate for an increased-rating claim, however, when in assessing the present level of disability the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant temporal focus is from one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  See also 38 U.S.C.A. � 5110(b)(2); 38 C.F.R. � 3.400(o)(2).

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule).  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor.  38 C.F.R. � 4.3.

Left Ankle Disability

Prior to February 8, 2010 (the date of his most recent VA compensation examination), the Veteran had a 10 percent rating for his left ankle disability, and he has had a 20 percent rating for it since under 38 C.F.R. � 4.71a, DC 5271, for limitation of motion of the ankle.

DC 5271 provides a 10 percent rating for moderate limitation of motion of the ankle and a maximum 20 percent rating for marked limitation.  Words such as "moderate" and "marked" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. � 4.6.  The Rating Schedule provides some guidance, however, by defining normal range of motion of the ankle as from zero to 20 degrees of dorsiflexion and from zero to 45 degrees of plantar flexion.  See 38 C.F.R. � 4.71, Plate II.

The Veteran has been diagnosed with traumatic arthritis of his left ankle,
status-post repair of an Achilles tendon rupture, based on X-rays taken during his October 2006 VA examination.  The provisions of 38 C.F.R. �� 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for traumatic arthritis (DC 5010), in turn rated as degenerative arthritis (DC 5003), in turn rated under the applicable DC for limitation of motion of the affected joint(s) - which, here, as mentioned, is DC 5271 since involving the ankle.  See also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (indicating that when determining a rating for a disability that is at least partly based on the extent there is limitation of motion, VA adjudicators must consider whether there is additional disability, such as additional limitation of motion, due to factors such as pain or painful motion, weakness, premature or excess fatigability, and incoordination, including during prolonged repetitive use or when the symptoms are most problematic ("flare ups").

The Veteran filed his claim for a higher rating for this disability on September 8, 2006.  In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned when the rating for a disability is increased.  It is dependent on the facts of the case:  (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. � 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. � 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. � 3.400(o)(2)).  See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. � 5110(b)(2) was to provide Veterans with a one-year grace period for filing a claim following an increase in the severity of a service-connected disability).

When increasing the rating for this disability from 10 to 20 percent, the AMC determined that it was not shown the Veteran was entitled to this higher rating until his February 8, 2010 VA compensation examination.  So the AMC elected option (1) from above and made the rating increase effective as of the date of that VA compensation examination (date entitlement arose) (38 C.F.R. � 3.400(o)(1)).  The Board, however, disagrees and concludes the Veteran is entitled to this higher 20 percent rating, albeit no greater rating, as of the date of receipt of his increased-rating claim on September 8, 2006.

During this immediately preceding period prior to February 8, 2010, the most important evidence comes from the October 2006 VA examination.  On repetitive range of motion testing, the Veteran demonstrated what amounted to "marked" limitation of motion of his left ankle, versus just "moderate" limitation of motion, since he had only 1/4 of normal dorsiflexion (5 out of the regular 20 degrees) and only 2/3 of normal plantar flexion (30 out of the regular 45 degrees).  See 38 C.F.R. � 4.71, Plate II.  Given especially this restriction of his dorsiflexion during even that earlier VA examination, the Board finds that a higher 20 percent rating is warranted under DC 5271 because he met the requirements for this higher rating prior to his more recent February 8, 2010 VA examination.

In comparison, the February 2010 VA examiner found slightly better dorsiflexion, to 10 degrees, although slightly worse plantar flexion, which was to only 25 degrees.  On the basis of that examination, the RO assigned the maximum 20 percent rating under DC 5271, as of February 8, 2010, the date of that examination.  But given the nearly equivalent findings during the earlier October 2006 VA examination, consistency demands the Board assign this higher 20 percent rating as of the contemporaneous receipt of the increased-rating claim on September 8, 2006.  This, as mentioned, is the highest possible rating under DC 5271, so to receive an even greater rating, the Veteran must satisfy the requirements of some other potentially applicable DC or warrant consideration of additional compensation on an extra-schedular basis under the special provisions of 38 C.F.R. � 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 337 (1996).

There is no indication of ankylosis, however, precluding consideration of DC 5270, the only other potentially applicable DC that could provide a rating higher than 20 percent.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because the Veteran still has some quantifiable measure of range of motion of his left ankle on both plantar flexion and dorsiflexion, albeit not normal range of motion in either direction, by definition his left ankle is not ankylosed.

There is no basis to "stage" his rating under Hart because his left ankle disability has never been more than 20-percent disabling at any time since September 8, 2005, one year prior to filing his current claim.  He is, however, entitled to this 20 percent rating as of the receipt of his increased-rating claim on September 8, 2006, so not just as of his February 8, 2010 VA examination.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Left Ear Hearing Loss

The Veteran's left ear hearing loss has been assigned a noncompensable (0 percent) rating under 38 C.F.R. � 4.85, DC 6100.  He contends it is worse.  It is important for him to understand that a rating for hearing loss is determined by mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric test results.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  In this instance, the audiometric findings do not support a compensable rating.

Evaluations of hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz.  The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness.  38 C.F.R. � 4.85.

But, here, only the hearing loss in the left ear is service connected.  Under 38 C.F.R. � 4.85(f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of � 3.383.  Therefore, for the purposes of applying 38 C.F.R. � 4.85(f) to Table VII, the Board designates the non-service-connected right ear to have only, at most, Level I hearing loss.  The pertinent medical evidence for consideration consists of VA audiology examination reports dated in October 2006 and June 2011, and VA outpatient treatment records.  The Veteran initially had a VA audiology examination in October 2006.  His puretone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT

50
35
30
30
LEFT

25
70
75
70

The average loss was 48 decibels in the right ear and 60 decibels in the left ear.  Speech recognition ability was 94 percent in the right ear and 74 percent in the left ear.  When applied to Table VI (38 C.F.R. � 4.85), this equates to hearing acuity Level V for the left ear.  And subject to 38 C.F.R. � 4.85(f)(hearing loss provisions for one service-connected ear), his non-service-connected right ear is assigned Level I hearing for the purpose of evaluating the service-connected right ear.  These findings, in turn, warrant a noncompensable (0 percent) disability rating under 38 C.F.R. � 4.85, Table VII.

The provisions for exceptional patterns of hearing impairment apply here, however.  see 38 C.F.R. � 4.86(b), since the puretone threshold was 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz.  But even taking the higher of the values of Tables VI (Level V) and VIa (Level IV), the service-connected left ear still only has at most Level V hearing loss.  And even after elevation to the next higher numeral of Level VI, and combined with the Level I assignment for the
non-service-connected right ear (see again � 4.85(f)), this still results in a noncompensable disability rating.  38 C.F.R. � 4.85, Table VII.

On remand, the AMC arranged for the Veteran to have another VA hearing examination in June 2011.  His puretone thresholds, in decibels, were as follows:

HERTZ

1000
2000
3000
4000
RIGHT

45
35
25
25
LEFT

30
70
60
60

The average loss was 33 decibels in the right ear and 55 decibels in the left ear.  Speech recognition ability was 96 percent in the right ear and 64 percent in the left ear.  When applied to Table VI (38 C.F.R. � 4.85), this examination results in a mechanical finding of hearing acuity Level VI for the left ear.  And subject to 38 C.F.R. � 4.85(f)(hearing loss provisions for one service-connected ear),
his non-service-connected right ear is assigned Level I hearing, for the purpose of evaluating the service-connected right ear.  These findings warrant a noncompensable (0 percent) disability rating under 38 C.F.R. � 4.85, Table VII.

He again had exceptional patterns of hearing impairment, however, so again warranting application of the special provisions of 38 C.F.R. � 4.86(b).  But taking the higher of the values of Tables VI (Level VI) and VIa (Level III), and then elevating this to the next higher numeral of Level VII, and combining it with the Level I assignment for his non-service-connected right ear (see again � 4.85(f)), still results in a noncompensable disability rating.  38 C.F.R. � 4.85, Table VII.

Also, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. � 4.10 (2010).  To that end, the June 2011 VA examiner determined the Veteran's hearing loss has significant occupational impairment effects, namely, poor understanding skills in the left ear that result in difficulty with communication.  But under Martinak, even if this examiner's description of these functional effects was insufficient, the Veteran bears the burden of demonstrating any resultant prejudice in the adjudication of his claim.  There is no such allegation.

There is no basis to "stage" his rating under Hart, either, because his left ear hearing loss has never been more than 0-percent disabling at any time since September 8, 2005, one year prior to filing his current claim.  The preponderance of the evidence is against his claim, so the benefit-of-the-doubt doctrine is inapplicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring these claims for extra-schedular consideration.  38 C.F.R. � 3.321(b)(1) (2010).  See also Thun v. Peake, 22 Vet. App. 111 (2008).  The pain and consequent limitation of motion the Veteran has in his left ankle are contemplated by the regular schedular rating criteria - in particular, DCs 5003 and 5010 that refer the rater to DC 5271.  And the June 2011 VA examiner remarked on the significant occupational effects caused by the Veteran's hearing loss, but there is no indication there is the type of marked interference with his employment, above and beyond that contemplated by his schedular rating, which would invoke extra-schedular consideration.  Rather, the limitations caused by decreased hearing acuity, such as difficulty communicating and difficulty perceiving acoustical cues in the environment, are the natural result of this sort of disability and have been considered in the rating criteria.  His occupational and functional limitations from his hearing loss are not unique to this particular Veteran so as to require additional consideration.  See Martinak, 21 Vet. App. at 455-56.  See also Thun, 22 Vet. App. at 111, and 38 C.F.R. � 4.1, indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired).  The Veteran has not required any hospitalizations, let alone on a frequent basis, for evaluation or treatment of these disabilities.  Instead, most, if not all, of the evaluation and treatment he has received has been on an outpatient basis, not as an inpatient.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

ORDER

The claim for a compensable rating for left ear hearing loss is denied.

However, a higher 20 percent rating, though no greater rating, is granted for the left ankle disability as of September 8, 2006 (so not just as of February 8, 2010), subject to the laws and regulations governing the payment of VA compensation.

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

Department of Veterans Affairs


judge_norm: DEREK R BROWN

condition: back

text:
Citation Nr: 1133000
Decision Date: 09/07/11    Archive Date: 09/15/11

DOCKET NO.  04-01 797	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability.

2.  Entitlement to service connection for a bilateral foot disability.

REPRESENTATION

Appellant represented by: Georgia Department of Veterans Services

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Carsten, Counsel

INTRODUCTION

The Veteran had active duty from September 1972 to March 1973.  He also performed National Guard service from August 1986 to August 1987, with a period of active duty training from January to April 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In March 2005, a hearing was held at the RO before the undersigned Veterans Law Judge.

In May 2005 and July 2009, the Board remanded this appeal for additional development.  It has since returned to the Board.

In October and December 2010, the Appeals Management Center (AMC) requested that the Georgia Department of Veterans Service submit a VA Form 646 or additional argument.  The requested information was not submitted.

In December 2010, a private attorney submitted a Privacy Act Waiver and request for a copy of the entire claims folder.  The attorney specifically stated that he had been authorized to review the file by the Veteran but would not be representing him until he filed a formal notice of representation.  A complete copy of the claims file was provided in June 2011.  To date, a formal declaration of representation has not been received.  Hence, the Board continues to recognize the representative listed above.

FINDINGS OF FACT

1.  In a November 1973 rating decision VA denied entitlement to service connection for a back disorder.  The Veteran did not perfect an appeal.

2.  Evidence associated with the record since the November 1973 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability.

3.  The preponderance of the evidence is against finding that the Veteran's current low back disability is related to a period of active military service; and the appellant did not demonstrate compensably disabling low back arthritis within one year of separation from active service.

4.  Resolving reasonable doubt in the Veteran's favor, a bilateral foot disability is related to active military service.

CONCLUSIONS OF LAW

1.  The November 1973 rating decision, which denied entitlement to service connection for a back disorder, is final.  38 U.S.C.A. � 7105(c) (West 2002); 38 C.F.R. � 20.1103 (2010).

2.  New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2010).

3.  A low back disability was not incurred or aggravated during service, nor may lumbar arthritis be presumed to have been incurred therein.  38 U.S.C.A. �� 101, 1110, 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. �� 3.6, 3.159, 3.303, 3.307, 3.309 (2010).

4.  A bilateral foot disorder was incurred during active service.  38 U.S.C.A. �� 101, 1110, 5103, 5103A; 38 C.F.R. �� 3.6, 3.102, 3.159, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As the claim of entitlement to service connection for a low back disability is being reopened herein, further discussion regarding the additional notification requirements for claims to reopen is not required.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).

The requirements of 38 U.S.C.A. �� 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  By correspondence dated in April 2003, June 2005, February 2009, and July 2009, the Veteran has been advised of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain.  The 2009 letters also provided notice how VA determines disability ratings and effective dates.  The claims were most recently readjudicated in the December 2010 supplemental statement of the case.

VA has also satisfied its duty to assist.  The claims file contains service treatment records from the Veteran's active service as well as National Guard service.  The Veteran reported treatment at Schofield Barracks for a low back injury during his initial period of service.  VA requested these records and negative responses were received.  In December 2010, a formal finding of unavailability was completed and the Veteran was advised that VA was unable to obtain these records.

The Veteran also reported treatment at the VA medical center in Philadelphia in 1973.  In connection with his initial claim, VA obtained records from VA medical center Philadelphia dated in April 1973.  An August 1973 VA examination report and outpatient records from 1976 and 1977 are also of record.  In June 2005, the RO requested any additional records from 1973.  A negative response was received in July 2005.  The June 2009 supplemental statement of the case notified the Veteran of the negative response.

The Veteran identified treatment from a department of corrections and these records were obtained.

In May 2009, a VA medical opinion was obtained regarding the nature and etiology of claimed low back disability.  The Board acknowledges that the Veteran was not seen personally.  Evidence of record, however, clearly shows a currently diagnosed disability and the purpose of the claims file review was to obtain a medical opinion addressing the etiology of the disorder.  The Board finds no need for additional examination.

In light of the decision to grant entitlement to service connection for a bilateral foot disability, a detailed explanation of how VA complied with the VCAA with regard to this issue is unnecessary.

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. � 3.159(c).

Analysis

New and material evidence

In a November 1973 rating decision VA denied entitlement to service connection for a back disorder essentially based on findings that service records were negative for such a disorder, and a VA examination was negative for any x-ray evidence of a lumbosacral disease, injury or abnormality.  The Veteran did not perfect an appeal.  Thus, the rating decision is final.  38 U.S.C.A. � 7105(c); 38 C.F.R. � 20.1103.

In June 2002, the Veteran submitted a claim to reopen.  A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. � 5108; 38 C.F.R. � 3.156(a).

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a).  In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. � 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."

In determining whether evidence is new and material, the credibility of the new evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Board notes that additional National Guard records were received following the November 1973 decision.  These records, however, are dated in 1986 and 1987 and were not in existence at the time of the prior final decision.  Thus, 38 C.F.R. � 3.156(c), which addresses the receipt of additional service records, is not for application.

At the time of the November 1973 decision, the claims file contained service treatment records, the Veteran's claim, and VA records.

Service treatment records show that on enlistment examination in September 1972, the Veteran denied a history of recurrent back pain.  His spine was within normal limits on clinical evaluation.  On March 21, 1973, the Veteran complained of low back pain.  On physical examination there was no spasm, but there was some tenderness, and slight muscle tension.  The impression was muscle strain.  The Veteran underwent a separation examination on March 29, 1973.  At that time, his spine was clinically evaluated as normal.

VA records dated in April 1973 indicate the Veteran was seen with complaints of constant low back discomfort.  There was no history of injury and he had full range of motion without tenderness or spasm.

In May 1973, the Veteran indicated that he wished to file an additional service connection claim.  He reported that his back condition was getting worse and worse.

The Veteran underwent a VA examination in August 1973.  The examiner noted no history of injury.  On physical examination, there was no spasm or tenderness and range of motion was full in all directions.  X-rays showed that the vertebrae and intervertebral spaces were all normally outlined.  There was no evidence of injury or disease.  The lumbosacral joint, sacroiliac joints, and hip joints were all within normal limits.  There was no arthritic change, spondylolisthesis, congenital anomaly or intervertebral disc disease.  The examiner indicated that the Veteran's lumbosacral spine was orthopedically negative for any back disorder.

A significant amount of evidence has been added to the record since the November 1973 decision.  This includes VA medical records showing treatment for a low back disability.  For example, a May 2008 neurosurgery clinic note indicates a diagnosis of degenerative disc disease of the lumbar spine, most pronounced at L5-S1.

Since the claim was previously denied based in part on the absence of medical evidence of a current disability, the Board concludes that the additional evidence showing a currently diagnosed low back disability is new and material and the claim is reopened.  Shade.

Service connection

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty; and any period of inactive duty for training during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. � 101(24); 38 C.F.R. � 3.6(a).

The term "active duty for training" is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any State.  38 U.S.C.A. � 101(22); 38 C.F.R. � 3.6(c).  The term "inactive duty for training" means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any State.  38 U.S.C.A. � 101(23); 38 C.F.R. � 3.6(d).

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. � 3.303(b).

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

In order to establish service connection or service-connected aggravation for a present disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Service connection will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309(a).  Presumptive periods do not apply to active duty training and inactive duty training.  See Biggins v. Derwinski, 1 Vet. App. 474 (1991).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

i. Low back disability

Having reopened the claim of entitlement to service connection for a low back disorder, the Board will consider the merits.  Initially, the Board acknowledges that the October and December 2010 supplemental statements of the case indicate that new and material evidence had not been received to reopen the claim.  A review of the file, however, shows that the RO previously reopened the claim and considered the issue on the merits.  The January 2009 deferred rating indicates that it is obvious that new and material evidence had been received.  The June 2009 supplemental statement of the case determined that there was no medical evidence showing that current disability was related to military service and that the claim of entitlement to service connection for residuals of a low back disability is denied.  Indeed, the July 2009 remand noted that it appeared that the RO reopened the claim and reviewed de novo in the June 2009 supplemental statement of the case.  The Veteran has been notified of the regulations pertaining to service connection and on review, he is not prejudiced by the Board's consideration of this issue on the merits.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

In various statements, the Veteran reported that he injured his back while stationed in Hawaii.  He indicated that he received treatment for a few weeks and was subsequently separated from service.

In the January 2004 Form 9, the Veteran reported that four months after separation from active duty, he was treated at VA and put in a back brace for several months.

At the travel board hearing, the Veteran testified that his back problems did not start until the accident during service.  He reported receiving medications and daily therapy.  He said that he went to VA for treatment after service but after his claim was denied, he just took care of himself the best that he could and self-treated his problems between 1973 and 1989.  Thereafter, he was incarcerated until approximately 2001.

As discussed above, service treatment records show that the Veteran was treated for muscle strain in March 1973, but his spine was described as normal on separation later that same month.

VA records dated in April 1973 document complaints of pain in the low back with no history of injury.  The August 1973 VA examination noted no history of injury and x-rays and physical examination were negative.

In December 1976, the Veteran presented to VA with complaints of low back pain.  It was noted that he worked at the post office lifting heavy objects.  Bed rest and muscle relaxants were prescribed.  The Veteran returned approximately two weeks later and reported that he was injured lifting bags of mail five days prior.  The diagnosis was low back pain with paraspinal muscle spasm.  A January 1977 record indicates that the pain had returned for three days.  The diagnosis was low back pain.

On examination for National Guard enlistment in August 1986, the Veteran denied recurrent back pain.  His spine was normal on clinical evaluation.

A January 1999 Department of Corrections record shows that the Veteran injured his back while attempting to pick up a ball on the basketball court.  The diagnosis was muscle strain.  X-rays were subsequently taken and impression was "[n]egative lumbosacral spine.  Reduced lordosis."  In February 1999, the Veteran was seen for neck and back pain.  It was noted that the Veteran was in a fight the day prior.  No injury was noted but he was complaining of pain below the left scapular area.  The assessment was back pain.

VA records show that the Veteran was seen in November 2001 with a 29 year history of intermittent low back pain.  He denied injury, but reported that the pain had become more constant and severe in the last month.  X-rays showed no evidence of fractures, destructive lesions or misalignment of the vertebral bodies.  The disc space between L5 and S1 was slightly narrowed.  A protruding disc at this level was a possibility.  There was a slight loss of lordotic curvature.  Magnetic resonance imaging (MRI) in December 2001 showed a small central disc protrusion slightly skewed to the right side at L5-S1; and very mild diffuse disc bulge at L4-5.

A February 2008 MRI showed significant disc desiccation at L5-S1 with left-sided disc bulge.  In May 2008, the Veteran was seen at the VA neurosurgery clinic.  He reported chronic back pain that intermittently radiates.  Following examination and review of MRI, assessment was degenerative disc disease lumbar spine, most pronounced at L5-S1.  Referral to pain management was recommended for conservative treatment.

A VA medical opinion was obtained in May 2009.  The examiner discussed the evidence of record, to include the complaints of low back pain with no history of injury.  The examiner stated that this appeared to be very weak evidence to associate any significant back problems with the service, and it was his opinion that it was less likely as not that the back disorder was related to active duty service from September 1972 to March 1973.

On review, evidence of record clearly shows a current low back disability.

In determining whether there was an in-service occurrence of a disease or injury, the Board has considered the Veteran's statements and testimony.  As noted, the Veteran reported that he injured his back during his initial period of service in 1972.  The Veteran is competent to report this.  See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation).  A review of service treatment records does not document a low back injury and indeed, subsequent records indicate that the Veteran denied a history of back injury.  Notwithstanding, a complaint of low back pain was reported in March 1973 and a muscle strain was diagnosed.

In considering whether there is a relationship between any current lumbar disability and military service, the Board has considered the Veteran's reports of continuity of symptomatology.  The Veteran is competent to report continued back problems.  Id.  The Board, however, does not find his reports of continuity credible.  In making this determination, the Board acknowledges that despite negative findings at separation in March 1973, the Veteran was seen less than one month following separation with back complaints.  A diagnosed low back disability, however, was not shown at that time or at the August 1973 VA examination.  The Veteran was next seen in 1976, i.e., three years postservice, with complaints related to heavy lifting postservice.  Preexisting low back problems were not noted.  The Veteran also denied back problems on enlistment with the National Guard and there is no evidence of treatment or complaints during his period of active duty training.  The evidence of record also shows a low back injury while incarcerated, and again, a history of chronic low back problems is not documented.  A diagnosed low back disability, to include arthritis, was not noted until many years following active service.

Finally, the VA examiner opined that there was no etiological relationship between any current low back disorder and service, and the record does not contain competent evidence to the contrary.

On review, the preponderance of the evidence is against the Veteran's claim.  Hence, the appeal must be denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet.App. 49 (1990).

ii. Bilateral foot disability

The Veteran contends that service connection should be established for a bilateral foot disability.  In various statements, the Veteran reported that he started having foot problems during his initial period of service.  He stated that he received treatment and was issued specially made boots.

At the March 2005 hearing, he testified that his foot problems started because of the boots he was given and that he has had continuous problems since then.  He reported that he was issued special boots because his other boots hurt his feet.  He also reported treatment while in the National Guard.

Service treatment records show that on enlistment examination in September 1972, the Veteran's feet were clinically normal.  In January 1973, the Veteran complained of pain in both feet and pain in his left leg.  It was noted that he had been evaluated and given boot inserts at Ft. Jackson which did not work.  He wore a size 10 shoe but was issued a size 11 boot.  Examination of the feet was negative and impression was foot pain.  The examiner suggested that the Veteran begin wearing two pairs of socks and if this failed to give a snugger fit, then he should get a size smaller boot.

The Veteran was seen on March 2, 1973 with continuous complaints about his feet.  It was noted that he had been seen at Ft. Jackson and had to have special boots with built in support.  He also stated that his ankles were weak.  Physical examination was negative.  The appellant's clinical history was noted, to include bilateral bunions.  Ankle x-rays were normal but conventional views of the feet were suggested to evaluate bunions.

On March 21, 1973, the Veteran complained of a sore on the right side of a foot.  Ointment was prescribed.  At a March 29, 1973  separation examination the Veteran's feet were described as normal on clinical evaluation.

In August 1986, the Veteran was examined for enlistment with the National Guard.  He denied a history of foot trouble and his feet were reported as normal on clinical evaluation.  The Veteran was seen in April 1987 with a history of bunions and calluses for three years.  He reported a three month history of right foot pain on the plantar sole.  Objectively, there was a callus on the right foot and a bunion.  The assessment was callus, bunion.  A podiatry consultation was requested, but it is unclear whether this was accomplished.

Department of Corrections records show that the Veteran had a right foot bunionectomy in approximately 1996 and left foot surgery in October 1997.

In January 2006, the Veteran was evaluated at a private podiatry clinic.  The assessment was limb pain, status post bilateral hallux abductovalgus surgery in 1995.

The Veteran underwent a VA examination in July 2006, conducted by Dr. J.H.  The Veteran reported that he initially injured his feet during service when he was issued irregular size boots.  He reported severe foot pain and that special boots were made for him.  The examiner noted several foot surgeries.  Following physical examination, the diagnoses were: hallux valgus with bunion formation of both feet; multiple tylomas with multiple surgeries; and severe metatarsalgia causing an inability to walk heel-to-toe.  The examiner indicated he did not have the claims file for review, but it was his opinion that the initial injury occurred in basic training and ever since the Veteran has had major problems with his feet because of ill fitting shoes which affected the shape and alignment of his feet, and his problems progressed.  The examiner opined that bunion formation and metatarsalgia were common "causes" (sic) of ill fitting shoes, these problems become permanent and are a major cause of foot deformity leading to chronic pain.  The examiner opined that one should never wear ill fitting shoes as it altered foot mechanics.

In August 2006, the VA examiner provided an addendum following claims file review.  He discussed relevant entries from the service treatment records and again set forth the above opinion.

A February 2007 addendum by Dr. R.R. indicates that the claims file was reviewed.  The physician discussed the service records, but indicated that he could not elicit any further details on the specific findings from his feet or diagnoses he had.  A medical opinion was not provided.

VA records show that the Veteran underwent surgery in September 2007 for a plantar flexed second metatarsal of the right foot.

In May 2009, the claims file was reviewed by Dr. W.C.  The physician discussed the evidence of record and acknowledged the in-service complaints concerning the feet.  It was his opinion, however, that this was not significant enough to warrant justifying this as service connected.  He further stated that it was less likely as not that the Veteran's complaints of the feet and ankle were related to active duty service from September 1972 to March 1973.

In November 2009, Dr. W.C. examined the Veteran and again reviewed the claims file.  Following examination the impressions were mild bilateral hallux valgus;  mild bilateral bunions; mild degenerative arthritis of the right ankle based on claims file review; mild degenerative arthritis of the metatarsalphalangeal joint of the right foot; and mild degenerative arthritis of the left foot, great toe based on claims file review.  In providing his opinion, the examiner indicated that the only time period he was relatively sure about was from September 1972 to March 1973.  The examiner could not find any notes indicating that the Veteran had definite hallux valgus and bunions in the initial active duty period.  He noted that there was a mention of calluses in the April 1987 note but the remainder of the note was difficult to read or interpret.  The examiner opined that it was less likely as not that the Veteran's current foot disorders were caused by or a result of his period of active duty.

In August 2010, Dr. W.C. again reviewed the claims file.  He noted that the handwritten notes dated in April 1987 appear to be podiatry notes and were illegible.  One looks like the mention of a callus was made and also a recommendation for proper foot care.  The examiner indicated that he was unable to decipher the meaning of the 1987 notes and it would be speculation on his part to give an opinion as to whether the Veteran's current foot disorder was related to that period of service based on notes that he was unable to read.

The evidence of record shows that the Veteran has a current bilateral foot disability. Service treatment records clearly document complaints of foot pain.  The records suggest the Veteran was issued the wrong size boots and bilateral bunions are also mentioned.

In assessing the credibility of the Veteran's statements regarding continuity of symptoms, the Board acknowledges that his separation examination was negative as well as his enlistment examination for the National Guard.  Notwithstanding, the Veteran was seen for foot complaints during his National Guard service and a history of foot problems and current findings were noted.

In determining whether there is a relationship between current disability and active service, the Board has also considered the various medical opinions of record.  The Board acknowledges that Dr. J.H. did not have the benefit of reviewing the National Guard records.  Notwithstanding, the Board finds no basis for finding Dr. W.C.'s opinion more probative than that of Dr. J.H.  The Board notes that Dr. J.H. provided well-reasoned rationale for his opinion that the Veteran's foot problems started in basic training.

In this case, the cause of the Veteran's current foot problems may never be known to a certainty.  Under the benefit-of-the-doubt rule, for the appellant to prevail, however, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence.  In other words, the preponderance of the evidence must be against the claim for the benefit to be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Given the evidence set forth above, such a conclusion cannot be made in this case.  Thus, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for a bilateral foot disability is warranted.  38 C.F.R. � 3.102.

ORDER

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

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for a bilateral foot disorder is granted.

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

Department of Veterans Affairs


judge_norm: MICHAEL D LYON

condition: headache

condition: gi

text:
Citation Nr: 1134000
Decision Date: 09/12/11    Archive Date: 09/22/11

DOCKET NO.  07-04 883	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for muscle tension headaches and migraines, to include as due to undiagnosed illness.

2.  Entitlement to service connection for benign fasciculations, manifested by muscle spasms and loss of muscle control, to include as due to undiagnosed illness.

3.  Entitlement to service connection for gastroesophageal reflux disease, to include as due to undiagnosed illness.

4.  Entitlement to service connection for Gulf War Syndrome, to include as due to undiagnosed illness.

REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The Veteran served on active duty from March 1980 to February 1992.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claims for service connection for headaches, benign fasciculations and gastroesophageal reflux disease, all to include as due to undiagnosed illness.  By decision dated January 2010, the Board found new and material evidence had been received, and reopened the claims for service connection.  In addition, the Board remanded the claims for additional development of the record.  The case is again before the Board for appellate consideration.

While not specifically discussed in the prior Board decision, beyond being listed as an issue, the claims then under discussion were all essentially reopened.  No development on issue number 4 was ordered, and as will be discussed below, there is no development that would change the outcome.

FINDINGS OF FACT

1.  The Veteran had service in the Southwest Asia Theater of operations during the Persian Gulf War.

2.  Muscle tension headaches and migraine headaches are known clinical disorders, and there is no competent and probative evidence linking them to service, to include service in the Persian Gulf.

3.  The Veteran's fasciculations may not be disassociated from his service in the Persian Gulf.

4.  Gastroesophageal reflux disease, if present, is a known clinical disorder, and a disability manifested by gastrointestinal problems was not present in service, and the competent and probative evidence fails to establish it is related to service, to include service in the Persian Gulf.

5.  "Gulf War Syndrome" is not a disability under the law and regulations governing the award of VA compensation benefits.

CONCLUSIONS OF LAW

1.  Muscle tension and migraine headaches were not incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. � 3.317 (2010).

2.  With resolution of reasonable doubt in the appellant's favor, fasciculations were incurred in active service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. � 3.317 (2010).

3.  Gastroesophageal reflux disease was not incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. � 3.317 (2010).

4.  "Gulf War Syndrome" does not represent a disability that could be incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.317 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. � 3.159(b) (2010).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson.

In a January 2010 letter, the RO provided notice to the Veteran regarding what information and evidence are needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  This letter advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that have been associated with the claims file include Social Security Administration records, VA medical records, and VA examination reports.  The Board notes this is a rebuilt claims folder.

As discussed above, the appellant was notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  The Veteran has been an active participant in the claims process by submitting evidence and providing argument.  Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant.  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Analysis

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

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. � 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. � 3.303(d).

Under 38 C.F.R. � 3.317, a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following):  (1) an undiagnosed illness; or (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (specifically chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness the Secretary determines meets the criteria of a medically unexplained chronic multisymptom illnesses).  38 C.F.R. � 3.317(a)(2).

The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.  38 C.F.R. � 3.317(a)(2)(ii).  Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.  Id.  "Objective indications of chronic disability" include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.  38 C.F.R. � 3.317(a)(3).  Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic.  38 C.F.R. � 3.317(a)(4).  The 6-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.  Id.

Signs or symptoms that may be a manifestation of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to the following:  fatigue; signs or symptoms involving the skin; headache; muscle pain; joint pain; neurologic signs or symptoms; neuropsychological signs or symptoms; signs or symptoms involving the respiratory system (upper or lower); sleep disturbances; gastrointestinal signs or symptoms; cardiovascular signs or symptoms; abnormal weight loss; and menstrual disorders.  38 C.F.R. � 3.317(b).

Compensation shall not be paid under 38 C.F.R. � 3.317: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between a veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of a veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. � 3.317(a)(7) (as re-designated September 29, 2010); see 75 Fed. Reg. 59968 (2009).

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

The evidence establishes that the Veteran served in the Persian Gulf during the requisite time period under 38 C.F.R. � 3.317.  The Veteran asserts he has headaches, fasciculations and gastroesophageal reflux disease due to his service in the Persian Gulf.

By letter dated December 2000, the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical Readiness and Military Deployments, advised the Veteran that if he was with his unit at the time of the demolition of Iraqi weapons, the models predicted he might have been exposed to very low levels of chemical agent for a brief period of time (less than three days) after the demolition.  It was stated that, based on current medical evidence and ongoing research, there was no indication that any long-term health effects would be expected from a brief, low-level exposure to chemical agents that might have occurred in Iraq.

	I.  Headaches

The available pertinent evidence of record was summarized in a May 2000 rating decision.  It was reported the service treatment records, to include a July 1992 physical examination, revealed no evidence of muscle tension or migraine headaches.  Headaches were reportedly first shown when the Veteran was seen in a VA outpatient treatment clinic in May 1995.  There was a diagnosis of questionable muscle tension headaches.  In August 1995, he related his headaches began 18 months earlier.  The diagnostic assessment was psychogenic headaches questionable versus organic.  The diagnosis on VA examination in July 1999 was common migraine headaches with photophobia, nausea and dizziness.  In an August 1999 statement, the Veteran asserted he was suffering from severe headaches when he returned to Germany from the Persian Gulf.  E.M. stated in August 1999 that she had lived with the Veteran from February 1992 until 1994 and he complained of severe headaches on occasion during that time.  E.G. related in August 1999 that the Veteran complained of headaches.  Following a VA neurological examination in August 1999, the diagnosis was possible muscle tension headaches or possible common migraine.

When examined by the VA in June 2005, the Veteran asserted he developed headaches in 1992.  He denied any treatment at that time.  He claimed he continued to have headaches.  The diagnosis was headaches, reportedly diagnosed in 1992, per the Veteran's history.

The Veteran was most recently examined by the VA in April 2010.  The examiner noted she reviewed the claims folder.  She was requested to provide an opinion concerning the etiology of the Veteran's headaches.  In May 2010, she noted that while the Veteran claimed he was diagnosed with tension headaches in 1992, the service treatment records revealed no evidence of such a condition.  Headaches were first demonstrated in 1995.  Based on this evidence, the examiner opined it was less likely as not that the Veteran's headaches were related to service.  The clinical record contradicts the Veteran's allegations he had headaches in service.  He is, therefore, not credible regarding the onset of his headaches.  Since headaches is a known clinical disorder, there is no basis on which service connection may be granted under the provisions of 38 C.F.R. � 3.317.

	II.  Fasciculations, manifested by muscle spasms and loss of muscle control

The May 2000 rating action shows the service treatment records are negative for complaints or findings relating to fasciculations.  The Veteran was afforded a quadrennial examination in July 1992, approximately five months after his separation from service, and there was no indication of fasciculations.  He was diagnosed with muscle twitching and fasciculations with loss of muscle control of unknown etiology on VA examination in July 1999.  In an August 1999 statement, the Veteran maintained he had developed tremors or muscle twitching in the legs in the last three years.  E.M. stated in August 1999 that the Veteran seemed to drag his right leg at times.  On VA neurological examination in August 1999, the diagnosis was probably benign fasciculations.  It was indicated there was no neurological abnormality and there was probably no serious underlying neuromuscular cause.

VA medical records reflect the Veteran has continued to report shakes or tremors.  The Veteran was seen in the neurology clinic in February 2003 for an evaluation of whole body fasciculations and impairment of balance.  He said these symptoms were first noticed three weeks after being exposed to Sarin gas.  The assessment was tremor.  The examiner commented he suspected the tremor was embellished.  He observed it was inconsistent in location and intensity.  He added it was highly atypical and unlikely to be secondary to a physiological cause.

The Veteran was hospitalized by the VA from February to March 2003.  On neurological assessment, he was found to have tremors.  The examiner stated the physical examination findings were variable and appeared to be more consistent with self-induced tremors than pathological findings.  He pointed out the Veteran stood up easily when called in to the examination, but then voiced difficulty when asked to do so.  He concluded the Veteran most likely had non-physiologic, psychogenic tremors, but he could not rule out Parkinsonism.

The Veteran presented to the VA in January 2004 with weakness and balance problems.  He related he was exposed to Sarin gas and his symptoms started to get bad around 1995.  He claims he had difficulty walking at that time.  The assessment was it appeared the Veteran had a resting and intentional tremor.  It was indicated all his symptoms had an unclear etiology as he had had numerous work-ups.

Following the VA examination in June 2005, the examiner indicated that benign fasciculations were evident on the assessment, but he was unable to determine without mere speculation if the condition was related to service in the Persian Gulf.

On VA examination in April 2010, the Veteran stated he was unable to control the shakes he experiences.  He claimed it began after his return from Iraq.  He alleged the first developed fasciculations of the legs and that in the previous six months, he felt it over his whole body.  The diagnosis was muscle fasciculations with non-physiologic source.  The examiner opined it was less likely than not a result of disease or injury attributable to service since formal neurologic testing and evaluation have diagnosed the fasciculations as non-physiologic with no evidence of Parkinson's disease or essential tremor.

Despite the opinion of the VA examiner, the Board finds the Veteran's non-physiologic tremors constitute neurologic signs or symptoms under 38 C.F.R. � 3.317.  That is, there have been multiple work-ups for this and no diagnosis, it is a multi-symptom disorder for there is no explanation.  Under the law, this provides a basis for allowance, in view of the provisions of the law, without a positive medical opinion.  Had there been a diagnosed basis, or a clear etiology for this disorder, the outcome under the law might be different.  Resolving reasonable doubt in the Veteran's favor, the Board concludes service connection is warranted for a disability manifested by fasciculations.

	III.  Gastroesophageal reflux disease

The May 2000 rating action discloses the service treatment records are negative for complaints or findings of a gastrointestinal condition.  The July 1992 quadrennial examination was also negative.  Gastroesophageal reflux disease was diagnosed on VA examination in July 1999.  The Veteran asserted in August 1999 that he had gastrointestinal problems.  Also, in an August 1999 statement, E.M. related she had lived with the Veteran from February 1992 to 1994 and that he had stomach problems, including diarrhea and nausea.  E.G claimed in August 1999 that the Veteran often had an upset stomach and diarrhea, but that he did not have such symptoms prior to service.

The Veteran was hospitalized by the VA for unrelated complaints from February to March 2003.  The medical history was significant for gastroesophageal reflux disease.  The pertinent diagnosis was acid reflux.

On VA examination in June 2005, the Veteran reported he had stomach problems.  He denied abdominal pain.  It was noted he took medication for a stomach condition.  The pertinent diagnosis was dyspepsia.  The examiner noted the Veteran complained at times of nausea.

The Veteran was again examined by the VA in April 2010.  He claimed his reflux symptoms started in 1992.  An examination revealed the abdomen was soft and non-tender.  There was no hepatosplenomegaly.  Bowel sounds were audible in all four quadrants.  The diagnosis was dyspepsia.  The examiner stated the Veteran was not willing to have testing, including an upper gastrointestinal series.  Thus, she concluded that while the Veteran's symptoms resolved with medication, there was no pathology to render the diagnosis.

It is clear that the refusal of the Veteran to undergo testing to document his stomach condition precludes the Board from ascertaining the nature of his claimed disability.  The VA should not be placed in the position of assessing the probative weight of any evidence when the actions of the Veteran preclude an accurate assessment of that evidence.

Despite the Veteran's allegations that his stomach problems had their onset during service, the clinical record is inconsistent with this claim.  As noted above, there is no indication for several years after service of any abdominal complaints.  To the extent the Veteran has gastroesophageal reflux disease, as a known clinical diagnosis, service connection for this condition is precluded under 38 C.F.R. � 3.317.  In addition, the examiner maintained that there was no pathology to diagnosis dyspepsia.  In sum, the Board concludes the medical findings on examination are of greater probative value, and the preponderance of the evidence is against the claim s and service connection is denied.

The statements on file are not found to be credible in light of the other evidence on file.  There is no evidence of gastrointestinal pathology for years after service.  Given the complaints when the disorder started, it is presumed that he would have sought treatment earlier if the complaints had originated closer to service.

	IV.  Gulf War Syndrome

The Veteran has claimed service connection for "Gulf War Syndrome."  He has been service connected for disorders secondary to his Gulf War Experience, but has outline no specific symptoms to the "Gulf War Syndrome" that has been claimed.  Compensation is paid for disabilities or injuries or chronic diseases incurred in or aggravated by service.  There needs to be a disability.  No disability has been attributed to this claimed entity.  As such, there is nothing to service connect as there is no clinical diagnosis.  See 38 U.S.C.A. �� 1110, 1117, 1131.

      V.  Other considerations

In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, except as where noted above, as the preponderance of the evidence is against the appellant's, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. � 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

ORDER

Service connection for muscle tension headaches and migraines, to include as due to undiagnosed illness, is denied.

Service connection for a disability manifested by fasciculations is granted.

Service connection for gastroesophageal reflux disease, to include as due to undiagnosed illness, is denied.

Service connection for "Gulf War Syndrome" is denied.

____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


disposition: dismissed

text:
Citation Nr: 1201000
Decision Date: 01/11/12    Archive Date: 01/20/12

DOCKET NO.  11-22 655	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUES

1.  Entitlement to service connection for arthritis of the thumbs.

2.  Entitlement to service connection for a bilateral knee disorder.

3.  Entitlement to service connection for a back disorder.

4.  Entitlement to a compensable rating for a bilateral hearing loss.

REPRESENTATION

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

WITNESSES AT HEARING ON APPEAL

Appellant and [redacted]

ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel

INTRODUCTION

The Veteran is a retired reserve Army Brigadier General who performed numerous periods of active duty to include from August 1971 to November 1974, from December 1990 to May 1991, from July 1994 to July 1995, from January 1996 to June 1996, and from June 1999 to March 2000.  He also performed extensive periods of active duty and inactive duty for training.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In May 2010, the Veteran and a witness appeared for a hearing before a Decision Review Officer hearing at the RO.  Unfortunately, following the hearing it was discovered that a transcript could not be prepared due to an equipment malfunction.  The Veteran was offered an opportunity to appear at a new hearing, but he declined that offer.

The Veteran had requested an opportunity to testify before a member of the Board, but he subsequently withdrew that request.

FINDING OF FACT

In August 2011, the Veteran withdrew his appeal of the claims of entitlement to service connection for arthritis of the thumbs, a bilateral knee disorder, a back disorder; and entitlement to a compensable rating for a bilateral hearing loss.

CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran concerning the claims of entitlement to service connection for arthritis of the thumbs, a bilateral knee disorder, a back disorder; and entitlement to a compensable rating for a bilateral hearing loss have been met.  38 U.S.C.A. � 7105(d)(5) (West 2002); 38 C.F.R. �� 20.202, 20.204 (2011).

REASONS AND BASES FOR FINDING AND CONCLUSION

In August 2011, the Veteran submitted a statement indicating that he wished to withdraw his appeal concerning the issues of entitlement to service connection for arthritis of the thumbs, a bilateral knee disorder, a back disorder; and entitlement to a compensable rating for a bilateral hearing loss.  A substantive appeal may be withdrawn on the record at a hearing by the Veteran at any time before the Board promulgates a decision.  38 C.F.R. � 20.204(b).  As the Veteran withdrew his appeal to the issues of entitlement to service connection for arthritis of the thumbs, a bilateral knee disorder, a back disorder; and entitlement to a compensable rating for a bilateral hearing loss, there remain no allegations of error of fact or law for appellate consideration.  The Board therefore has no jurisdiction to review these issues.

ORDER

The appeals to the denial of entitlement to service connection for arthritis of the thumbs, a bilateral knee disorder, a back disorder; and entitlement to a compensable rating for a bilateral hearing loss are dismissed.

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

Department of Veterans Affairs