judge_norm: JACQUELINE E MONROE

condition: psychiatric

text:
Citation Nr: 1504000
Decision Date: 01/28/15    Archive Date: 02/09/15

DOCKET NO.  12-23 670	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina

THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder claimed as depression, anxiety and/or somatization disorder, to include as secondary to service-connected disability(ies).

2.  Entitlement to a rating in excess of 30 percent for obstructive ventilatory defect with asthma and bronchial spasms (respiratory disorder).

3.  Entitlement to a total rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Paul M. Goodson, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel

INTRODUCTION

The Veteran served on active duty from February 1973 to April 1975.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2010 rating decision in which the RO, inter alia, denied a rating in excess of 30 percent for obstructive ventilatory defect with asthma and bronchial spasms and denied a TDIU.  In April 2011, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in June 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2012.

This appeal to the Board of Veterans' Appeals (Board) also arose  from a September 2011 rating decision in which the RO denied service connection for a psychiatric disorder.  In November 2011, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in June 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2012.

In March 2013, the Veteran testified during a Board video-conference hearing held before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

The Board notes that, in addition to the paper claims file, there are paperless, electronic Virtual VA and Veterans Benefits Management Systems (VBMS) files associated with the Veteran's claims.  A review of the electronic files reveals that the VBMS file contains no entries, and that entries found in the VVA file are entirely duplicative of those found in the paper claims file.

The claim for service connection for psychiatric disability is set forth below.  The claims for a  rating in excess of 30 percent for obstructive ventilatory defect with asthma and bronchial spasms, and for a TDIU, are addressed in the remand following the order; these matters are being remanded to the AOJ.  VA will notify the Veteran when further action, on his part, is required.

FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  No psychiatric disorder, to include those claimed as depression, anxiety and/or somatization disorder, manifested during service, no psychosis manifested during the first post-service year, and there is no competent, probative evidence or opinion indicating that any currently manifested psychiatric condition is causally or etiologically related to service.

3.  No current psychiatric disorder, to include those specifically claimed as depression, anxiety and/or somatization disorder, was caused or is aggravated by any service-connected disability(ies),

CONCLUSION OF LAW

The criteria for service connection for a psychiatric disorder claimed as depression, anxiety and/or somatization disorder, to include on a secondary basis, are not met.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159, and 3.326(a) (2014).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b).  As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. � 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. � 3.159 was revised, in part.  See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. � 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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-compliant 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.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, in a May 2011 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate her service connection claim.  The letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA.  The letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Thereafter, the RO adjudicated the claim in a September 2011 rating action, followed by readjudication of the claim in a June 2012 SOC.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim herein decided.  On file are the Veteran's service treatment records (STRs), VA medical records, a VA examination of June 2011 and supplemental opinion of August 2011, the transcript of a March 2013 Board video conference hearing, and various written statements of the Veteran and her attorney.  The Board finds that no further RO action on this claim, prior to appellate consideration, is required.

In June 2011, a VA examination for mental disorders was conducted to assess and diagnose the current manifested conditions.  In August 2011, an opinion was requested addressing whether there was a secondary relationship between any diagnosed mental disorder and one or more service connected conditions.  The opinion provided in August 2011 was negative.  The evidence on file adequately addresses the matters related to the claim on appeal.

With respect to the 2013 Board hearing, the Board notes that the Veteran was provided an opportunity to set forth her contentions before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. � 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  In this case, the Board finds that there has been substantial compliance  with the duties set forth in 38 C.F.R. 3.103(c)(2) , and that the hearing was legally sufficient.

Here, during the 2013 hearing, the Veterans Law Judge identified the issues on appeal, to include the claim herein decided.  Pertinent to this claim,  information was solicited regarding the symptoms associated with, and treatment for, the Veteran's psychiatric impairment,  and why she believed it to  be service-related.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" was also fully explained.  See Bryant, 23 Vet. App. at 497.  Although the undersigned did not explicitly suggest the submission of any specific, additional evidence, nothing gave rise to the possibility that there was existing, relevant evidence outstanding  that had been overlooked.

The Board notes  the argument of the Veteran's attorney  that VA erred by failing to consider records from the Social Security Administration (SSA), which are on file.  Although those records should be considered in connection with the remanded claims (addressed below), with respect to the claim herein decided, the  Veteran has indicated that she is in receipt of Social Security disability benefits for a low back disability and asthma; there has been no mention of any psychiatric condition in this regard.  As there is no indication that SSA records have any bearing on the outcome of the service connection claim on appeal, they are not essential to the adjudication of this matter, and need not be considered.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (there is no duty to obtain SSA records when there is no evidence that they are relevant).

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which she might obtain evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

I.  Background

In April 2011, the Veteran filed a service connection claim for a psychiatric disorder described as a somatization disorder, claimed as secondary to service-connected conditions.

Service connection is currently in effect for: bilateral hearing loss; obstructive ventilatory defect with asthma and bronchial spasm; chronic bilateral otitis externa and media with rupture of tympanic membrane; and for tinnitus associated with hearing loss.

The Veteran's DD 214 Form shows that she served in the United States Marine Corps and that her primary MOS was exchangeman, the civilian equivalent of stock clerk.

The STRs were entirely negative for treatment, findings, or a diagnosis of a mental health condition during military service.  There was no separation examination conducted, as the Veteran was found to be unfit for further duty in 1975, due to obstructive ventilatory defect.

A VA medical record dated in June 1981 indicates that the Veteran had episodes of talking incoherently at her workplace, and an episode of erratic behavior in May 1981.  Diagnoses of bronchial asthma, psychotic-like episodes, and urinary incontinence, were made.

VA records include a May 2005 psychiatry note indicating that the Veteran had been treated for mood disorder in the past and had been recently laid off when the plant where she had worked for 14 years closed down.  The Veteran gave a 10-year history of symptoms of anger, irritability, agitation, and feeling depressed.  Depressive disorder, dysthymic disorder, and adjustment disorder with depressed mood were diagnosed.

Treatment reports from VA Medical Center Salisbury/Hickory CBOC dated from January 2009 to November 2010 reveal that the Veteran was seen for a psychiatric evaluation in July 2010 for evaluation and treatment of depression.  It was noted that the Veteran had a long history of anxiety.  She complained of symptoms of irritability and paranoia and reported that her greatest stressors involved matters of family conflict.  Diagnoses of major recurrent depression; anxiety disorder, not otherwise specified; and somatization disorder, were made.  Axis IV stressors were identified as father's death, family conflict, medical conditions, and husband's mental illness; service and/or service-connected conditions were not identified.

A VA examination for mental disorders was conducted in June 2011 and the claims file was reviewed.  It was noted that the Veteran was last seen and evaluated by VA psychiatry in April 2011, at which time diagnoses of major, recurrent depression; anxiety disorder; somatization disorder; and personality disorder were made.  It was noted that the Veteran was somatically focused, complaining of pain in the right wrist and elbow, left thigh and leg, and in the neck and shoulders.  Major depressive disorder and anxiety disorder were diagnosed.  The examiner stated that the Veteran did not meet the criteria for somatization disorder, as she denied having gastrointestinal and pseudoneurological symptoms.  Additionally the examiner stated that a somatoform disorder could not be diagnosed because this disorder required a thorough medical evaluation to ensure that the symptoms cannot be fully explained by a known general medical condition.

In August 2011, another VA medical opinion was offered  addressing whether diagnosed major depressive disorder and anxiety disorder are  secondary to the Veteran's service-connected disabilities.  The August 2011 medical opinion  states that these diagnosed conditions were not caused by or a result of one or more service connected conditions.  The examiner, a clinical psychologist, noted that all mental health records to include the most recent VA examination of June 2011 had been reviewed.  She explained that there was no indication in any of the records of a connection between the service connected disabilities and diagnosed major depressive disorder and/or anxiety disorder.  It was observed that the Veteran had mentioned multiple stressors to include family, financial, health, and psychosocial history, however, it is nowhere mentioned that the conditions were felt to be related to or impacting the depression in any way.

The Veteran provided testimony at a Board videoconference hearing held in March 2013.  She stated that she had been seeing a psychiatrist for about 4 years, maybe longer, and believed that a somatization condition had been diagnosed.  At the hearing, the Veteran acknowledged receiving Social Security disability benefits for a low back disability and asthma, there was no mention of any psychiatric condition in this regard.

III.  Analysis

At the outset, the Board notes that, although the Veteran has specifically claimed secondary service connection, to give him every consideration in this appeal, the Board, like the RO, will consider the claim under other theories of entitlement.

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  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).

Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and conditions including psychoses, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. �� 3.307, 3.309 (2014).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310(a) (2014).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. � 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

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.  It 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) (West 2002); 38 C.F.R. � 3.102 (2014).  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

The Veteran's STRs are negative for any diagnosis of psychiatric condition or psychosis, nor was any form of psychoses shown to have manifested during the first post-service year.  The earliest clinical documentation of psychiatric diagnoses was shown in medical records of 2005, but according to those records, a mood disorder was treated years previously.  Even so, there is no indication or contention of continuity of symptomatology since service.  Moreover, the record contains no competent and credible lay or medical evidence establishing, or even suggesting, an etiological relationship between service, or any incident therein, and the diagnosis of any psychiatric condition, initially made decades after service.  Accordingly, there is no basis for the establishment of service connection for a psychiatric condition on a direct or presumptive basis.

As for the matter of secondary service connection, as mentioned previously, service connection is currently in effect for: bilateral hearing loss; obstructive ventilator defect with asthma and bronchial spasm; chronic bilateral otitis externa and media with rupture of tympanic membrane; and  tinnitus associated with hearing loss.

In this case, several psychiatric disorders  have been diagnosed, to include depression, anxiety and/or somatization disorder.  In the case of somatization disorder, upon comprehensive clinical VA examination of June 2011, it was determined that findings did not in fact support this diagnosis, essentially indicating that this condition had been errantly diagnosed previously.  This diagnosis is not shown to be substantiated by clinical indications supporting the diagnosis, and in any event the condition has never been secondarily linked by any competent evidence or opinion to one of more of the Veteran's service-connected disabilities.  Thus, there is no basis upon which to grant secondary service connection for somatization disorder.

The records reflect that depressive disorder and anxiety disorder were diagnosed in 2005, as confirmed upon VA examination of 2011.  However, with respect to those diagnosed conditions, the file contains the August 2011 opinion of a VA clinical psychologist to the effect that these diagnosed conditions were not caused by or a result of one or more service connected conditions.  She explained that there was no indication in any of the records of a connection between the service connected disabilities and diagnosed major depressive disorder and anxiety disorder.  It was observed that the Veteran had mentioned multiple stressors to include family, financial, health, and psychosocial history, however, it is nowhere mentioned that the service connected conditions were felt to be related to or impacting depression in any way  A review of the VA medical reports from 2005 forward reflects that this explanation is factually accurate.

Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  The comprehensive reasons supporting the August 2011 medical opinion are detailed above and reflect review of the lay and clinical history.  Therefore, Board finds no adequate basis to reject the competent medical opinion provided by VA in August 2011 based on a lack of credibility or probative value, and finds the opinion to be of significant probative value.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998).  In addition, the Veteran has not provided or even identified any competent evidence to rebut this opinion or otherwise diminish its probative weight.  See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).

Furthermore, as for the Veteran's own assertions as to diagnosis and medical nexus, the Board does not question the sincerity of the Veteran's beliefs as to the nature and etiology of his psychiatric problems.  .  However, on these points, the Veteran's assertions, alone, provide no persuasive support for the claim, as the Veteran is not shown to have the medical training and/or expertise to competently opine on these points.  Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), providing opinion as to the diagnosis and etiology of claimed peripheral neuropathy in this case falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  As  Veteran's opinions in this regard are not competent, they  are, therefore, are of no probative value in this case.

For all the foregoing reasons, the Board finds that the claim for service connection claim for a psychiatric disorder claimed as depression, anxiety and/or somatization disorder, to include as secondary to service-connected disability(is) must be denied.  Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim.  See 38 U.S.C.A. � 5107(b) ; 38 C.F.R. � 3.102.  See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Gilbert, supra.

ORDER

Service connection a psychiatric disorder claimed as depression, anxiety and/or somatization disorder, to include as secondary to service-connected disability(ies), is denied.

REMAND

The Board's review of the claims file reveals that further AOJ action on the claims fora rating in excess of 30 percent for obstructive ventilatory defect with asthma and bronchial spasms, and for a  TDIU, is warranted.

The Veteran seeks an evaluation in excess of 30 percent for her service-connected respiratory disorder, rated under 38 C.F.R. � 4.97, Diagnostic Code 6602.  Under those criteria, the next higher rating of 60 percent requires FEV-1 of 40 to 55-percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, at least monthly visits to a physician for required care of exacerbations; or, intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids.  A schedular 100 percent disability rating is warranted for an FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.  The Board notes that a veteran is not required to meet each of the stated criteria in order for an increased rating to be assigned.  Rather, he or she need only meet one criterion because the criteria are listed in the alternative.  See Johnson v. Brown, 7 Vet. App. 95 (1994).

The Veteran's attorney has argued that pulmonary function testing of October 2010 indicated that the criteria for a 100 percent rating  were met.  However, the attorney neglected to mention that the report of testing clearly documents the Veteran's poor and inconsistent effort and indicates that "ATS" (American Thoracic Society) standards for testing were not met.  As such, the results are invalid for rating purposes.

Accordingly, a remand is warranted to obtain updated, reliable pulmonary function test results.  In addition, during her March 2013 hearing testimony, the Veteran indicated that emphysema (not service connected) had also been diagnosed.  On examination, the examiner should indicate whether symptoms of emphysema can be distinguished from those attributable to service connected obstructive ventilatory defect with asthma and bronchial spasm.

With respect to the TDIU claim, service connection is currently in effect for: bilateral hearing loss, rated as 50 percent disabling; obstructive ventilatory defect with asthma and bronchial spasm, rated as 30 percent disabling; chronic bilateral otitis externa and media with rupture of tympanic membrane rated as 10 percent disabling; and for tinnitus associated with hearing loss rated as 10 percent disabling.  The Veteran's combined rating has been 70 percent since January 2009.  Thus, the Veteran meets the percentage requirements for a schedular TDIU.  See 38 C.F.R. � 4.16(a)(3) (2014).

The Veteran filed a TDIU claim in March 2010, at which time she reported that she had worked in a textile plant from January 1990 until January 2005, when she was laid off and the plant closed.  She maintains that asthma and degenerative arthritis are the cause of her unemployability and reports having a high school education, with no additional type of education or training.  In March 2010, a VA doctor provided an opinion to the effect that the Veteran was 100 percent permanently and totally disabled and unemployable.  He explained that the Veteran suffered from bronchial asthma for which she used an inhaler, and was under pain management for severe neck and back degenerative arthritis and disc disease, for which high doses of pain relievers had been prescribed and due to which she could not drive.  The Board notes that service-connection is not in effect for any neck or back disability, and it is clear that these conditions were implicated as significant factors supporting the aforementioned opinion.

When adjudicating a TDIU claim, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993

Although the record includes the results of various examinations for individual service-connected disabilities, further examination and medical opinion to clearly address the functional effects of individual and combined service-connected disabilities, and their impact on the Veteran's employability, is needed to resolve the claim for a TDIU.  See 38 U.S.C.A. � 5103A (West 2014); 38 C.F.R. � 3.159 (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this regard, the Board acknowledges that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical question, but rather, a determination that must be made by an adjudicator.  See 38 C.F.R. � 4.16(a) (2014); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014).  However, as medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity (38 C.F.R. � 4.10(2014) and  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013)), further medical findings as to the functional effects of individual, and combined service-connected disabilities would be helpful in resolving the claim for a TDIU, particularly in light of the aforementioned newly service-connected conditions.  As such, a general medical examination should be arranged for this purpose.

The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may well result in denial of the claim(s) for increase (to include the claim for a  TDIU, whch is considered a claim for increase).  See 38 C.F.R. � 3.655(b) (2014).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any  scheduled examination(s), the AOJ should obtain and associate with the claims file (a) copy(ies) of any correspondence referencing  the date and time of the examination(s)-preferably, the notice(s) of examinations(s)-sent to him by the pertinent VA medical facility.

Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records, not already of record.

In hearing testimony provided in 2013, the Veteran indicated that she was seen at the VAMC in Asheville, NC every 3 to 6 months, and had also been seen on an emergent basis for respiratory symptoms.  The June 2012 SOC reflects consideration of VA treatment reports from the Salisbury/Hickory, NC CBOC dated to September 12, 2011.  A review of the Veteran's electronic files does not reveal that more recent VA/CAPRI records have been compiled and considered in conjunction with claims remaining in appeal.  VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  Given the Veteran's testimony, VA has actual notice of additional potentially pertinent VA records and as such, VA records dated from September 2011 forward, should be compiled and considered in conjunction with the claims.

In addition, although the Veteran has not specifically identified any pertinent, private treatment, to ensure that all due process requirements are met, and the record is complete, the AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response.  See 38 U.S.C.A. � 5103(b)(1) (West 2014); but see also 38 U.S.C.A. � 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records.

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. � 3.159 (2014).
records
The actions identified herein are consistent with the duties imposed by the (VCAA.  See 38 U.S.C.A. �� 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2014).  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining  on appeal.

Accordingly, these matters are hereby REMANDED for the following action:

1.  Obtain from the Salisbury, Durham and Asheville VAMCs, as well as the Hickory CBOC, all of the Veteran's outstanding VA treatment records, as well as emergent treatment records, dated from September 2011, forward.  Follow the procedures set forth in 38 C.F.R. � 3.159(c) as regards requesting records from Federal facilities.  Associate all records and/or responses received with the claims file.

2.  Send to the Veteran and her attorney a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the increased rating claim for obstructive ventilatory defect and the TDIU claim.  Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records.

Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. � 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA pulmonary/respiratory examination, by an appropriate physician, to determine the current nature and severity of her service-connected obstructive ventilatory defect with asthma and bronchial spasms.

The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the clinician, and the opinion should reflect consideration of the Veteran's documented medical history and assertions. All appropriate tests and studies (to include PFTs) should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

In particular, the examiner is asked to:

a)  Clearly identify all currently manifested respiratory conditions, and specifically address whether a diagnosis of emphysema is supported (per history provide by the Veteran).

b) For any currently diagnosed respiratory disorder deemed not service-related, the examiner should indicate whether it is possible to distinguish the manifestations of such disorder from  manifesrations of the service-connected obstructive ventilatory defect with asthma and bronchial spasms.

c) Conduct pulmonary function testing and record the Veteran's FEV-1 percent predicted and FEV-1/FVC percentage.  Given the Veteran's history of poor effort documented on prior testing, note any such indications in the report of test results and indicate whether the test results are considered valid.

d) Detail the nature and frequency of the Veteran's asthma attacks.  State whether any of her asthma attacks have been manifested by episodes of respiratory failure.  If the Veteran has experienced episodes of respiratory failure, detail the nature, approximate date(s) and frequency of such attacks (i.e. in terms of weekly/monthly).

e) State whether the Veteran's service-connected respiratory disorder requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications; and if so, from what approximate date.

f) State whether the Veteran's service-connected respiratory disorder requires at least monthly visits to a physician for required care of exacerbations.

g) State whether intermittent (at least 3 per year) courses of systemic (oral or parenteral) corticosteroids have been required, and indicate the approximate time periods.

h) Specify  the functional effects of the obstructive ventilatory defect with asthma and bronchial spasms on the Veteran's activities of daily living, to include employment.

The examiner is advised that the Veteran is generally considered competent to provide lay reports relating to matters within her personal knowledge, such as her history and types of symptoms and her lay reports should be considered, to the extent made, in formulating the requested opinions. If the Veteran's lay reports are discounted, the examiner should provide a rationale for doing so.

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

5.  Thereafter, arrange for the Veteran to undergo VA general medical examination, by an appropriate physician, for evaluation of all of her service-connected disabilities.

The contents of the entire claims file ((paper and electronic), to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.

Based on examination of the Veteran, and full consideration of all pertinent  medical and lay evidence, the physician should fully describe the functional effects of the Veteran's service-connected disabilities-bilateral hearing loss, obstructive ventilatory defect with asthma and bronchial spasm,  chronic bilateral otitis externa and media with rupture of tympanic membrane, and tinnitus associated with hearing loss-on her activities of daily living, to include employment.

Specifically, the physician should provide comment as to functional effects of each disability-as well  as the combined effects of all service-connected disabilities-on the Veteran's ability to perform the mental and/or physical acts required for gainful employment.

In addressing the above, the examiner should consider and discuss the impact/significance of associated medications, as well as the Veteran's education and workplace skills, but not the Veteran's age or distinguishable impairment from nonservice-connected disorders.

Complete, clearly-stated rationale for the conclusions reached must be provided.

6.  If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file any correspondence referencing the date and time of the examination-preferably, notice(s) of examination-sent to her by the pertinent VA medical facility.

7.  To help avoid future remand, ensure that all requested actions have been accomplished to the extent possible in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).

8.  After accomplishing all requested action, as well as any additional notification and/or development action deemed warranted by the VCAA, adjudicate the increased rating claim for the service-connected respiratory disorder, and the claim for a TDIU.

If the Veteran fails, without good cause, to report for any scheduled examination(s), in adjudicating the claim(s), apply the provisions of 38 C.F.R. � 3.655(b), as appropriate.

Otherwise, adjudicate each claim in light of all pertinent evidence (to include all evidence added to the record since the last adjudication, as well as SSA records), and legal authority.

9.  If any benefit sought on appeal remains denied, furnish to the Veteran and her attorney an appropriate supplemental SOC that includes clear reasons and bases for the determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12  Vet. App. 369 (1999).

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

______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: ROBERT C SCHARNBERGER

disposition: granted

benefit: tdiu

text:
Citation Nr: 1505000
Decision Date: 02/03/15    Archive Date: 02/09/15

DOCKET NO.  12-30 790	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska

THE ISSUES

1.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD) rated 50 percent disabling from August 8, 2011, 70 percent disabling from March 8, 2013, and 50 percent disabling from July 9, 2013.

2.  Entitlement to a total disability rating for individual unemployability (TDIU).

REPRESENTATION

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

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel

INTRODUCTION

The Veteran served on active duty from January 1971 to July 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2011 (PTSD) and January 2013 (TDIU) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  The Veteran had a hearing before the Board in February 2014 and the transcript is of record.

An October 2012 Statement of the Case (SOC) granted the Veteran an increased rating for his PTSD to 50 percent, effective August 8, 2011, the date of his increased rating claim.  In an October 2013 Supplemental Statement of the Case (SSOC), the RO awarded the Veteran a rating of 70 percent for his PTSD, effective March 8, 2013, but only until July 8, 2013.  The SSOC also continued the 50 percent rating for his PTSD, effective July 9, 2013.  After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above.

The Board notes the Veteran submitted a private psychiatric evaluation dated February 2014 after the final Supplemental Statement of the Case.  This was submitted with a waiver of local jurisdictional review, so the Board finds no prejudice proceeding with a decision here.

FINDINGS OF FACT

1.  Throughout the appeal period the Veteran's PTSD is manifested by severe symptoms, to include social phobia, sleep disturbances, panic attacks, depression, irritability and angry outbursts, difficulties concentrating, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances, but with no evidence of delusions, hallucinations, grossly inappropriate behavior or persistent suicidal and/or homicidal ideation.

2.  The Veteran is service connected for PTSD, rated 70 percent disabling by this decision, tinnitus, rated 10 percent disabling, and bilateral sensorineural hearing loss, rated 0 percent disabling; he has a combined disability rating of 70 percent.

3.  The Veteran's service-connected disabilities preclude his ability to maintain substantial gainful employment.

CONCLUSIONS OF LAW

1.  Throughout the appeal period, the criteria for a rating of 70 percent, but no higher for PTSD have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.326(a), 3.400, 4.130, Diagnostic Code 9411 (2014).

2.  The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 3.340, 3.341, 4.16(a) (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Assist and Notify

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38
U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156 (a), 3.159, 3.326.

With regard to the TDIU claim, since the claim is being granted, any deficiencies in notice or assistance are considered harmless.

With regard to the PTSD issue, a letter dated in August 2011 satisfied the duty to notify provisions to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A � 5103(a); 38 C.F.R � 3.159(0(1); Quartuccio v. Principi, 16 Vet App 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. � 5103A; 38 C.F.R � 3.159.  Records associated with the Veteran's grant of Social Security Administration (SSA) disability benefits have been obtained.  The Veteran submitted private psychiatric evaluations dated April 2012 and February 2014.  These evaluations include a list of times the private psychiatrist treated the Veteran from 2011 to 2014.  The specific treatment notes from these identified treatment sessions are not all in the claims folder, specifically from 2013 to 2014. Although not obtained, the Veteran also did not provide a release form or otherwise ask VA to obtain these records.  The Board finds no prejudice to the Veteran in proceeding here because the February 2014 psychiatric evaluation indicates a summary of findings from all the treatment sessions.  Indeed, the psychiatric evaluation is a strong basis for the awarded increased rating here. The Veteran has not identified any other documents that he feels would be relevant to his claim.

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. � 3.327(a).

The Veteran was provided a VA examination in connection with the claim on appeal here in August 2011.  Additionally, VA outpatient treatment records include psychiatric evaluations dated in 2010, 2011, and 2012.  A VA opinion was obtained in September 2012 to address conflicting evidence of record regarding the Veteran's PTSD.  Also of record are private psychiatric evaluations completed in April 2012 and February 2014 along with private treatment records.  A VA psychiatrist also provided medical opinions, albeit originally in regard to his vocational rehabilitation application, dated March 2013 and June 2013.

The Board finds while the August 2011 VA examination and September 2012 VA medical opinion are adequate, they were in stark contrast to the Veteran's private treatment records from 2011 to 2014 and opinions submitted by the VA psychiatrist in 2013.  Rather than delay the appeal here by affording the Veteran a new VA examination, the Board considered all medical evidence and finds the cumulative medical evidence of record adequate for deciding the claims herein.  Cf. 38 C F R. � 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  All examinations and opinions of record, to include private evaluations done in  2012 and 2014, addressed current symptoms and diagnoses, evaluated the likely etiology of the diagnosis rendered, and provided supporting explanation and rationale for all conclusions reached.  The examinations of record are thorough and all necessary evidence, to include lay statements, and testing was considered by the examiners.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. � 3.103(c)(2)  (2014) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claims that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars. The representative and the VLJ asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. � 3.103(c)(2).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinsela v. Sanders, 129 S. Ct. 1696 (2009).

PTSD (Inceased Rating)

Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. � 4.126. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The Veteran was originally rated 30 percent for his PTSD, effective August 6, 2008.  On August 8, 2011, the Veteran submitted a claim seeking an increased rating for his PTSD.  Staged ratings are appropriate in any increased-rating or initial rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

In fact, staged ratings were assigned by the RO.  As will be discussed below, the Board finds the Veteran's PTSD has been manifested by consistent manifestations throughout the appellate time frame and, therefore, staged ratings are not appropriate here.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7.

The General Rating Formula for Mental Disorders provides, in pertinent part:

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships . . . . . . . . . . . . . . . . . . . . . . . 50

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

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

38 C.F.R. � 4.130, Diagnostic Code 9411.

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. � 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under � 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  Id.

Additionally, a GAF score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996).  A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders.  See Massey v. Brown, 7 Vet. App. 204, 207 (1994).

The medical evidence in this case, to include VA outpatient treatment records, private treatment records, an August 2011 VA examination, and 2012 and 2014 private psychiatric evaluations reflect significantly differing GAF scores ranging from 45 to 67 throughout the appellate time frame. It is noteworthy, however, that the Veteran's private psychiatric evaluations and records from 2011 to 2014 consistently indicate a GAF score of 45.  The disparity is solely in the VA outpatient treatment records and VA examinations of record.

The DSM-IV provides for a GAF rating of 41-50 for serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Incidentally, a GAF rating of 51-60 is assigned for moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  DSM-IV (American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  The DSM-IV provides for a GAF rating of 61-70 for some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  Id.

In determining the proper rating for the Veteran at various points of time, the Board relied on GAF scores as assistive and probative evidence, but it is noteworthy that GAF scores are not dispositive and the actually described symptoms in the claims folder were also heavily considered here.  See, Massey, 7 Vet. App. at 207.

VA outpatient treatment records dated from July 2010 to October 2010 reflect a GAF score of 67, for mild symptoms, indicating the Veteran was able to handle a stressful situation with his wife, namely her knee surgery, appropriately.  The records indicate the Veteran was "feeling pretty good" with appropriate affect and a cheerful mood.  Sleep, memory, and concentration were all noted as improved or "OK." Grooming, hygiene, motor behavior, and speech were all noted as normal.  The diagnosis of PTSD was continued.

In March 2011, the Veteran was seen indicating he was doing well. His mood was neutral and his affect was appropriate.  He was busy with house projects and a weight loss program.  He indicated feeling happy and content and denied suicidal ideations.  His PTSD diagnosis was continued with a GAF score of 62.

In May 2011, however, the Veteran's spouse called worried about the Veteran and indicating an increase in irritability over "the last couple months."  She also indicated she suspected the Veteran had been abusing alcohol and was arrested for shoplifting plants.  He was not expressing suicidal ideation at that time, and an appointment was scheduled for June 2011.

VA outpatient treatment records indicate the Veteran was seen once in June 2011 and once in July 2011.  In those sessions, the Veteran acknowledges he was abusing alcohol and had increased symptoms of anxiety since September 2010 as a result of various stressful circumstances.  He was charged with shoplifting in May 2011, which was uncharacteristic of him, but he made a poor choice as a result of the alcohol abuse.  In July 2011, the Veteran appeared to have a decrease in anxiety and his mental health was described as "stable."  Grooming and hygiene and motor behavior were described as "normal."  His affect was appropriate and his mood was neutral at that time. The Veteran did not exhibit any suicidal or homicidal ideations at that time and his thought process was within normal limits.  Although the PTSD diagnosis was noted in both June and July 2011 VA outpatient treatment records, no GAF score was assigned at that time. Rather, the Veteran was asked to follow up in one month.

Since the filing of his claim, the Veteran was afforded VA examinations in August 2011 and September 2012.  Also of record are private treatment records from the Veteran's private psychiatrist, Dr. Renner, to include private psychiatric evaluations dated April 2012 and February 2014.  The Veteran's regularly treating VA psychiatrist also submitted medical opinions dated March 2013 and June 2013.

As noted above, the VA records indicate varying assessments of the Veteran's PTSD whereas Dr. Renner's assessments all appear consistent with each other.  Dr. Renner's assessments are also consistent with the Veteran's lay statements and statements made by his wife, to include their testimony before the Board. For this reason, the Board found Dr. Renner's psychiatric evaluations to be more persuasive.

In August 2011, the VA examiner diagnosed the Veteran with PTSD assigning a GAF score of 55, for moderate symptoms to include daily avoidance of people, intrusive thoughts three times a week, depressed mood, anxiety, chronic sleep impairment, panic attacks weekly or less often, mild memory loss, hypervigilance, exaggerated startle response, irritability, and angry outbursts. The examiner did not find symptoms ordinarily associated with a 70 percent rating such as obsessional rituals, illogical speech, or near-continuous panic.  The examiner also did not appreciate any neglect to personal hygiene or deficiency performing everyday tasks.

In contrast, the Veteran's private psychiatrist, Dr. Renner, in April 2012 diagnosed the Veteran with PTSD, bipolar disorder, generalized anxiety disorder (GAD), and personality disorder, assigning the Veteran a GAF score of 45.  In contrast to the August 2011 VA examiner, Dr. Renner found the Veteran to exhibit nearly continuous panic attacks, suicidal ideation, and obsessional thinking which interferes with routine activities.  Dr. Renner noted poor impulse control and unprovoked irritability.  Dr. Renner also indicated the Veteran's neglect of personal appearance and hygiene with great difficulty adapting to stressful circumstances.  A suicide attempt on June 23, 2004 was noted.  As an aside, the Board notes the Veteran shot himself on this date due to stress at work and never returned to work following recovery from those injuries.  Although the Veteran never verbalized suicidal ideation since that time, it is clear the Veteran struggles with stressful situations as evidenced by shoplifting in May 2011.  Dr. Renner opined that the Veteran's GAF score and described symptoms were attributable to his PTSD, as well as bipolar disorder, GAD, and personality disorder, which are not service-connected.  It is noteworthy that Dr. Renner's April 2012 report was based on several treatment sessions from December 2011 to April 2012.  The Board reviewed these treatment session notes and concludes the April 2012 psychiatric evaluation by Dr. Renner is consistent with those session notes.

Dr. Renner's more recent February 2014 private psychiatric evaluation, which was based on treatment sessions from 2011 to 2014, contained virtually identical findings assigning the Veteran a GAF score of 45 for serious symptoms associated with PTSD, bipolar disorder, GAD, and personality disorder.

An August 2012 VA outpatient treatment record also reflects diagnoses of bipolar disorder, anxiety disorder, and PTSD, but assigns the Veteran a GAF score of 65 with symptoms of depression, anxiety in large crowds, and some sleep disturbances.  Although the Veteran did not like large crowds, the doctor at that time noted the Veteran was fine in small restaurants and got along well with his wife.  Grooming and hygiene were noted as good, as well as motor behavior and attitude.  The Veteran's mood was described as "anxious" with a constricted affect, but with logical thought processes and adequate insight.

The VA obtained an additional VA examination and opinion to reconcile the conflicting description of symptoms as well as clarify whether the Veteran had other psychiatric diagnoses and, if so, whether the manifestations of PTSD alone could be clarified.  This opinion, dated September 2012, concluded the Veteran's mental health diagnoses only included PTSD and Alcohol Abuse.

It is noteworthy, although discussed in more detail under the TDIU section below, that the Veteran applied for vocational rehabilitation through the VA, which was denied finding it unlikely the Veteran could maintain substantial gainful employment due to his PTSD symptoms.

As part of this application, a medical opinion was obtained by a VA psychiatrist dated March 2013.  Therein, the VA psychiatrist indicates examining the Veteran on three occasions as well as reviewing medical records.  Based on examination and review of the records, the VA psychiatrist opined at that time that the Veteran had chronic severe PTSD, bipolar affective disorder, and severe social phobia.  Based on these disabilities, as well as other physical disabilities, the Veteran was unemployable.  With respect to his mental health in particular, the VA psychiatrist noted symptoms of memory impairment, an inability to concentrate, avoidance of people, an inability to engage in social interactions, sleep disturbances causing fatigue, and "tortured" by traumatic memories and depression.   In June 2013, this same VA psychiatrist clarified that the Veteran's mental health symptomatology is "inextricably intertwined in and around his multiple treated diagnoses."  No GAF score was provided at that time.

It is noteworthy, however, that more recent VA outpatient treatment records dated in 2013 indicate a GAF score of 50 with manifestations more consistent with Dr. Renner's private psychiatric evaluations.

The Veteran and his wife testified before the Board in February 2014 where the Veteran's lack of personal care and hygiene as well as social phobia was emphasized.  The Veteran's wife indicated that she forced the Veteran to shower prior to VA examinations and medical appointments.  The Board finds this a credible explanation as to why those examiners noted the Veteran's hygiene and grooming as "good" whereas Dr. Renner noted a significant deficiency in this area.  The Veteran indicated he does not drive and does not interact with anyone but his wife and occasionally his sister.  The Veteran's wife elaborated that they hardly ever see their grandchildren because he cannot tolerate those situations.

In short, since the filing of his increased rating claim in August 2011, there has been a significant disparity on the description of the Veteran's PTSD.  There is no factually ascertainable increase evident in the year prior to the Veteran's August 8, 2011 claim for an increased rating, which contains VA outpatient treatment records noting a GAF range of 62-67 for mild symptoms, most significantly an inability to cope with stressful circumstances.  While the Veteran had a shoplifting incident he related to dealing with a stressful circumstance, as of July 2011, his mental health disorder was described as "stable."

VA outpatient treatment records and VA examinations from August 2011 to 2012 indicate moderate symptoms stemming from PTSD such as sleep disturbances, depression, and social avoidance. These symptoms are ordinarily associated with a 50 percent disability rating under the diagnostic criteria.

In contrast, private psychiatric sessions from 2011 to 2014, private psychiatric evaluations dated April 2012 and February 2014, VA psychiatric evaluations done in connection with the Veteran's application for vocational rehabilitation in 2013, and VA outpatient treatment records in 2013 indicate severe symptoms stemming from PTSD, to include social phobia, anxiety, panic attacks, poor impulse control, depressed mood, sleep disturbances, neglect of personal appearance and hygiene, and an inability to adapt to stressful circumstances.  While the Veteran had a prior suicide attempt in 2004, there is no evidence of recent attempt, although suicidal ideation is a concern with his wife and private psychiatrist.  These symptoms are ordinarily associated with a 70 percent disability rating.

Although there is a large disparity, especially from 2011 to 2012, it is noteworthy that none of the medical evidence indicates symptoms typically associated with a 100 percent, total, disability rating such as delusions, hallucination, gross impairment of thought process, grossly inappropriate behavior, or a persistent danger of hurting self or others. Although the Veteran has impaired memory and concentration, none of the medical evidence indicates he is completely disoriented to time or place.

In light of the disparity between described symptoms by VA examiners and VA outpatient treatment records versus private treatment records and records associated with his application for vocational rehabilitation, the Board will resolve the discrepancy in the Veteran's favor. For those reasons, the Board finds a 70 percent rating is warranted, but no higher for his PTSD, throughout the appeal period.
Extraschedular Considerations

The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability.  The Veteran's disability is manifested by impairment in social and occupational functioning.  The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008).

TDIU

In light of the grant here, the Veteran is service connected for PTSD, rated 70 percent disabling, tinnitus, rated 10 percent disabling, and bilateral sensorineural hearing loss, rated 0 percent disabling.  His combined disability rating during the applicable appellate time frame is 70 percent disabling. See 38 C.F.R. � 4.25.

The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his PTSD symptoms.

The Veteran worked full time up until June 2004 with a job history consisting of numerous employers.  According to a January 2013 social worker report, done in conjunction with the Veteran's application for vocational rehabilitation, the Veteran did a lot of "temporary jobs" immediately after service.  He worked as a "backup cook" in 1994, an Assistant Manager in the produce department at Safeway from 1995 to 2002, and he worked as a truck driver from 2003 to June 2004.  He reportedly shot himself in a suicide attempt because of the stress and never returned to work after he recovered from the injuries.  Although he attended some years of college, the Veteran does not hold a post-high school degree.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).

Throughout the appeal period the Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. � 4.16(a).  The only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities.

In determining the Veteran's unemployability status, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the above percentages for service-connected disabilities are met and in the judgment of the rating agency such service-connected disabilities render him unemployable.  38 C.F.R. � 4.16(a).  The Veteran's age and nonservice-connected disabilities cannot be taken into account in the process of evaluating his individual unemployability status.  See, e.g., Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995).

The RO obtained numerous VA examinations and opinions throughout the appellate time frame in connection with rating his PTSD.  As outlined above, there was a significant disparity in the characterization of the Veteran's PTSD within these VA examination reports compared to private evaluations, and opinions submitted by a VA psychiatrist in connection with his vocational rehabilitation application.

In December 2012, a VA medical opinion was obtained with regard to employability specifically where the examiner opined that the Veteran was not unemployable solely due to manifestations stemming from his PTSD.

In contrast, there are numerous opinions indicating the Veteran would not be able to find substantial, gainful employment in light of his PTSD.  The Board further finds noteworthy that the Veteran applied for vocational rehabilitation in 2013.  This application was denied in a March 2013 decision finding the Veteran was not likely to be successful in finding and maintaining employment in light of his medical conditions, significantly his PTSD.
In contrast to the December 2012 VA medical opinion, a VA psychiatrist examined the Veteran on three occasions and reviewed his medical record in connection with his application for vocational rehabilitation.  Based on the examinations and review of the record, that VA psychiatrist submitted opinions in March 2013 and June 2013 rendering the opposite conclusion.  Specifically, in March 2013, the VA psychiatrist opined that the Veteran "is unemployable now and for the foreseeable future" because of numerous medical conditions, but significantly the Veteran's PTSD.  The VA psychiatrist noted the Veteran's psychiatric condition makes it hard to follow simple instructions, concentrate on tasks, and socially interact appropriately.  Indeed, the Veteran does not drive and has severe social phobia severely limiting his ability to leave the house.  It is noteworthy that this opinion highlighted manifestations stemming from the Veteran's PTSD, but also noted other unrelated and non-service connected diagnoses.  In June 2013, the VA psychiatrist clarified that the Veteran's mental health symptomatology is "inextricably intertwined in and around his multiple treated diagnoses."  The opinion reiterated that the Veteran is "unable to pursue any substantial or sustainable gainful employment by reason of his service connected conditions."

The Veteran also submitted private treatment records and opinions rendered by his private psychiatrist, Dr. Renner.  In opinions dated April 2012 and February 2014, Dr. Renner similarly opines the Veteran is "not capable of full time or even part time work for now and in the foreseeable future due to posttraumatic stress disorder and related psychological conditions."  It is noteworthy that Dr. Renner has diagnosed the Veteran with other non-service connected psychiatric diagnoses, to include bipolar disorder and generalized anxiety disorder.

In short, there is one VA medical opinion dated December 2012 indicating the Veteran is not unemployable due solely to his PTSD, and multiple opinions from other psychiatrists both private and at the VA refuting this opinion.  To the extent the opinions were based in part on non-service connected psychiatric or physical diagnoses, the VA psychiatrist makes clear in the June 2013 opinion that the manifestations of his PTSD are inextricably intertwined with those diagnoses.

Lay statements submitted by the Veteran and his spouse, to include testimony before the Board and the DRO further indicate the Veteran is significantly reliant on his spouse for activities of daily living, to include personal hygiene and transportation.  His spouse testified the Veteran's PTSD causes constant panic or anxiety rendering him unable to concentrate or care for himself.  She further testified as to the Veteran's inability to be around people, to include their own grandchildren.

It is clear from the entire record that the Veteran made attempts to find work, to include applying for vocational rehabilitation.  This application was denied based on the medical evidence at the time and the social worker's report indicating the Veteran left his last job in June 2004 after sustaining a bullet wound to the abdomen in a suicide attempt due to the stress of his job.

The Board has considered the Veteran's statements, the other lay statements of record, and the medical evidence of record.  Despite one examiner having a differing opinion, the Board finds the overwhelming majority of the evidence indicates the Veteran is totally disabled due to his service-connected PTSD.  Thus, a total disability rating for compensation purposes based on individual unemployability is warranted.

ORDER

Entitlement to a rating of 70 percent but not higher, for PTSD is granted throughout the appeal period subject to the laws and regulations governing monetary awards.

Entitlement to a total disability rating based on individual unemployability is granted subject to the laws and regulations governing monetary awards.

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

Department of Veterans Affairs


judge_norm: J PARKER

condition: hypertension

text:
Citation Nr: 1506000
Decision Date: 02/10/15    Archive Date: 02/18/15

DOCKET NO.  10-11 080	)	DATE
	)
	)

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

THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for hypertension.

2.  Entitlement to service connection for hypertension.

REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.

WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)

ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant, had active service from July 1975 to July 1995.

This appeal comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied the claim (received in May 2007) to reopen service connection for hypertension.

Service connection for hypertension was previously denied by the RO in February 1996, and the Veteran did not initiate an appeal of the decision or submit any new and material evidence within the applicable one-year period.  See 38 C.F.R.		 � 3.156(b) (2014); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).  Finally decided claims cannot be reopened in the absence of new and material evidence.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2014); Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C.A. �� 5108, 7104(b)).  Regardless of any RO determination as to the matter of new and material evidence, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim.  Barnett, supra.

In December 2014, the Veteran testified at a personal hearing in San Antonio, Texas (Travel Board hearing) before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

FINDINGS OF FACT

1.  An unappealed February 1996 rating decision, in pertinent part, denied service connection for hypertension on the basis that the diagnosed hypertension existed prior to service and there was no evidence that the condition permanently worsened as a result of service.

2.  The evidence received since the February 1996 rating decision relates to an unestablished fact of aggravation of the hypertension by service.

3.  Hypertension was not "noted" at entry to active service in July 1975.

4.  Hypertension clearly and unmistakably existed prior to service, but was not clearly and unmistakably not aggravated by service; therefore, the presumption of sound condition at service entrance applies.

5.  The Veteran's currently diagnosed hypertension had its onset during service.

CONCLUSIONS OF LAW

1.  The February 1996 rating decision to deny service connection hypertension became final.  38 U.S.C.A. � 7105(c) (West 2014); 38 C.F.R. �� 3.104, 20.302, 20.1103 (2014).

2.  New and material evidence has been received to reopen service connection for hypertension.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2014).

3.  Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for hypertension have been met.  38 U.S.C.A. �� 1110, 1111, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. �� 3.159, 3.304 (2014)

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.          38 U.S.C.A. �� 5100, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159 (2014).  The Board reopens and grants service connection for hypertension, constituting a full grant of the benefit sought on appeal; therefore, no discussion of VA's duty to notify and to assist is necessary.

Reopening Service Connection for Hypertension

The Veteran seeks to reopen service connection for hypertension.  The original claim for service connection, initially filed in August 1995, was originally denied in a February 1996 rating decision.  The Veteran did not initiate an appeal of the decision or submit any new and material evidence within the applicable one-year period.  See 38 C.F.R. � 3.156(b); Jennings, 509 F.3d at 1368.  As such, the decision became final as to the evidence then of record, and is not subject to revision on the same factual basis.  38 U.S.C.A. � 7105(b); 38 C.F.R. �� 3.104, 20.302, 20.1103.

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C.A. �� 5108, 7105(c); 38 C.F.R. � 3.156.  When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material."  Smith v. West, 12 Vet. App. 312 (1999).

New evidence means existing evidence not previously submitted to agency decision makers.  38 C.F.R. � 3.156(a).  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  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.  Id.

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a veteran's claim in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Barnett, 83 F.3d at 1383; Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216 (1995).

Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter.  Jackson v. Principi,
265 F.3d 1366, 1369 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial).

In the February 1996 rating decision, the RO, in pertinent part, denied service connection for hypertension on the basis that the diagnosed hypertension existed prior to service and there was no evidence that the condition permanently worsened as a result of service.  The pertinent evidence of record at the time of the February 1996 rating decision includes service treatment records, a September 1995 VA examination report, and the Veteran's lay statements.

The Board has reviewed the evidence received since the February 1996 rating decision and finds that it qualifies as new and material evidence to warrant reopening service connection for hypertension.  In a November 2010 letter, Dr. B.T. noted that the Veteran had been diagnosed with hypertension since he entered active service in 1975 and opined that, due to the stress, job training, career field, and mobility, the Veteran's hypertension was aggravated by service.

The Board finds that this evidence, received after the February 1996 rating decision, is new.  It was not previously of record, and is neither cumulative nor redundant of evidence previously considered by the RO.  Such evidence is also material in that it relates to evidence of aggravation of the Veteran's hypertension by service (relating to the presumption of soundness).  38 C.F.R. � 3.304.

As noted above, when making determinations as to whether new and material evidence has been presented, the credibility of the evidence is generally presumed.  See Justus, 3 Vet. App. at 513; Duran, 7 Vet. App. 216.  This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. � 3.156(a) have been satisfied.  Accordingly, as the Board finds that new and material evidence has been received to reopen service connection for hypertension.  Further, the Board finds that the provisions of 38 C.F.R. � 3.156(b) and (c) are not applicable.  There was no evidence received during the one-year appeal period for the February 1996 rating decision; therefore, 38 C.F.R. � 3.156(b) does not apply.  Nor have additional service department records been received since the February 1996 rating decision; therefore, 38 C.F.R. � 3.156(c) does not apply.

Service Connection for Hypertension

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a) (2014).  Generally, service connection for a disability requires evidence of: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service.  38 U.S.C.A. � 1111 (West 2014).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. � 3.304(b) (2014).

Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. � 1111 and 38 C.F.R. � 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03.

The Veteran essentially contends that the current hypertension did not preexist service and rather was incurred during service.  The Veteran further contends that, even if the hypertension did preexist service, it was clearly aggravated by service.  The Veteran contends that he informed military personnel at enlistment in June 1975 that his blood pressure sometimes goes up, but denied being diagnosed with hypertension or on blood pressure medication prior to active service, contending that he was formally diagnosed with hypertension in 1977.  See April 2008 notice of disagreement, February 2010 substantive appeal (on a VA Form 9), December 2014 Board hearing transcript.

In an October 2014 written statement, the representative contended that, while the Veteran was diagnosed with hypertension prior to service, he was not taking medication for it at the time of service enlistment.  The representative notes that the Veteran began taking hypertension medication during active service and contends that the hypertension was aggravated by service.

The Board finds that hypertension clearly and unmistakably existed prior to active service.  On the June 1975 service enlistment physical, the Veteran's blood pressure was noted to be 118/76, which is not considered hypertension for VA purposes.  See 38 C.F.R. � 4.104, Diagnostic Code 7101 (2014).  On an associated report of medical history, the Veteran endorsed high or low blood pressure.  The reviewing physician noted a history of treatment for hypertension one year prior and no present medications, but did not diagnose the Veteran with hypertension.  As noted above, only such conditions as are recorded in examination reports are to be considered as noted; therefore, the Board finds that preexisting hypertension was not "noted" at service entrance.  38 U.S.C.A. � 1111; 38 C.F.R. � 3.304(b).

July 1975 service treatment records (less than one month following the June 1975 service enlistment physical) note that the Veteran reported a history of hypertension and was treated for chest pains.  An August 1975 service treatment record notes that the Veteran reported being treated for hypertension one year prior (pre-service enlistment) and that ran out of pills three months prior (also pre-service enlistment).  A November 1975 service treatment record notes that the Veteran was found to have high blood pressure in the past and was reportedly put on medication.  The treatment record notes that the Veteran told the recruiters that he had high blood pressure.  A January 1976 service treatment record notes that the Veteran had high blood pressure for at least the previous two to three years.  Based on the above, the Board finds that the currently diagnosed hypertension clearly and unmistakably preexisted prior to service.

As to the question of whether the preexisting hypertension was not aggravated by service, the Board finds that the evidence of record does not demonstrate that the preexisting hypertension was not clearly and unmistakably aggravated by service.  The evidence of record includes some evidence that the Veteran's hypertension was aggravated by (permanently worsened during) service.

Evidence tending to show aggravation in service includes a November 2010 written statement, in which Dr. B.T. noted that the Veteran had been diagnosed with hypertension since entering active service in 1975.  Dr. B.T. opined that, due to stress, job training, career field, and mobility, the Veteran's hypertension was aggravated by his 20 years of military service.  The Board finds that the factual assumptions upon which this opinion rests are consistent with the other lay and medical evidence of record, including the Veteran's credible reports of symptoms worsening during service and the service treatment records notations of symptoms and treatment with various medications in service.

In a June 2014 VA examination report, the VA examiner opined that the Veteran's hypertension, which clearly and unmistakably preexisted service, was not aggravated beyond his natural progression by service; however, review of the VA examination report reflects that the VA examiner based the opinion on an "at least as likely as not" standard.  Rebutting the presumption of soundness on entry into service requires VA to show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The June 2014 VA examiner used the incorrect legal standard; therefore, the Board finds the opinion rendered to be inadequate.  As there is not clear and unmistakable evidence that the Veteran's preexisting hypertension was not aggravated by service, the Board finds that the presumption of sound condition regarding hypertension at service entrance is not rebutted.  See 38 U.S.C.A. � 1111; 38 C.F.R. � 3.304.

Because the presumption of sound condition at service entrance is not rebutted by clear and unmistakable evidence both that hypertension preexisted service and that it was not aggravated by service, the Veteran's claim becomes one of direct service incurrence.  See Wagner, 370 F.3d 1089.  The evidence of record reflects treatment for, and diagnosis of, hypertension in service, continuing treatment for hypertension during the Veteran's 20 years of active service, and continuing, post-service

complaints of, diagnosis of, and treatment for hypertension, essentially immediately after separation from service.  See e.g., September 1995 VA examination report (noting a diagnosis of mild to moderate hypertension).  As such, resolving reasonable doubt in favor of the Veteran, direct service connection for hypertension is warranted.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

ORDER

As new and material evidence has been received, the appeal to reopen service connection for hypertension is granted.

Service connection for hypertension is granted.

____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs