judge_norm: J W ZISSIMOS

condition: arthritis

text:
��Citation Nr: 19102000

Decision Date: 01/08/19	Archive Date: 01/08/19

DOCKET NO. 13-08 660

DATE:	January 8, 2019

REMANDED

Entitlement to service connection for a bilateral knee disorder is remanded.

Entitlement to service connection for rheumatoid arthritis is remanded.

Entitlement to service connection for an acquired psychiatric disorder, to include an emotionally unstable personality disorder, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1977 to April 1981.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from an October 2012 rating decision.

The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2013.  A transcript of that proceeding is associated with the record.

The Board remanded the case for further development in March 2015, November 2015, March 2017, and January 2018.  The case has since been returned to the Board for appellate review.

Regarding the claims for service connection for bilateral knee disorders and rheumatoid arthritis, the Veteran was afforded a VA examination in September 2018.  In rendering his negative nexus opinion, the examiner stated that only one record, an August 6, 2010, VA primary care record, documented knee pain as consistent with patellofemoral syndrome or chondromalacia.  However, the Board notes that a January 2011 VA medical record noted the same findings.  In addition, the examiner did not provide an explanation regarding the significance, if any, of the gap in time between the Veteran s military service and the onset of his disorder.  Therefore, a remand is necessary to obtain an additional VA medical opinion.  Stegall v. West, 11 Vet. App. 268, 271(1998).

Regarding the claim for service connection for an acquired psychiatric disorder, the Veteran was afforded a VA examination in August 2018.  The examiner opined that the Veteran s persistent depressive disorder preexisted his military service.  However, the examiner did not provide an opinion as to whether the Veteran s acquired psychiatric disorder clearly and unmistakably preexisted service, as previously directed by the Board.  Rather, the examiner opined that the claimed condition was less likely than not proximately due to or a result of his service-connected condition.

In addition, the August 2018 VA examiner evaluated the Veteran s acquired psychiatric disorder under the criteria for the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5).  However, the Veteran s claim was certified to the Board on July 11, 2013, and there is no indication that the examiner considered the DSM-IV criteria.  See 38 C.F.R. �� 4.125, 4.130; 79 Fed. Reg. 45,093 (Aug. 4, 2014). Therefore, a remand is necessary to obtain an additional VA medical opinion.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matter is REMANDED for the following action:

1.  The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his acquired psychiatric disorder.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA medical records, to include any records from the Muskogee VA Medical Center dated from March 2017 to the present.

2.  After completing the above development, the AOJ should refer the Veteran s claims file to the August 2018 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any acquired psychiatric disorder that is present.  An additional physical examination should be performed if deemed necessary by the VA examiner.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran s service treatment records, post-service medical records, lay assertions, and September 2013 testimony.

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation.

The examiner should identify all current psychiatric disorders.  If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved.

It should be noted that multiple diagnoses of psychological disorders appear in the record, to include: depression not otherwise specified (NOS) (November 2016 psychiatric note); adjustment disorder not otherwise specified (NOS) (May 2015 VA psychiatric note); generalized anxiety disorder (January 2013 VA psychiatric note); depressive disorder NOS (February 2005 VA psychiatric note); and emotionally unstable personality disorder (October 1980 service treatment record).

For each diagnosis identified other than a personality disorder, the examiner should opine as to whether the disorder clearly and unmistakably preexisted service.

If so, the examiner should state whether there was an increase in the severity of the preexisting psychiatric disorder during service and whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology.

For each diagnosis other than a personality disorder that did not clearly and unmistakably preexist service, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran s military service, to include any symptomatology therein.

If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service.

(The term  clear and unmistakable  means that the evidence is undebatable.)

(The term  at least as likely as not  does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3.  After any additional records are associated with the claims file, the AOJ should refer the Veteran s claims file to the September 2018 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran s right and left knee disorders other than rheumatoid arthritis.  An additional physical examination should be performed only if deemed necessary by the VA examiner.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran s service treatment records, post-service medical records, and assertions.

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation.

The examiner should identify all current bilateral knee disorders (other than rheumatoid arthritis), to include right knee degenerative arthritis and a left knee patella spur.  He or she should also consider the VA medical records noting diagnoses of patellofemoral syndrome or chondromalacia.  If any previously diagnosed knee disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved.

For each diagnosis identified other than rheumatoid arthritis, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran s military service, to include any prolonged standing therein.

In rendering his or her opinion, the examiner should consider the following: 1) the Veteran s contention that his periods of prolonged standing in the military caused his current disorder; 2) the December 2008 VA medical record that noted the Veteran complained of knee pain; 3) the VA medical record that note diagnoses of patellofemoral syndrome or chondromalacia (see, e.g., VA medical records dated in August 2009 and January 2011); 3) a June 2009 VA MRI report of the Veteran s right knee that noted an impression of degenerative changes in the menisci.

(The term  at least as likely as not  does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

4.  After any additional records are associated with the claims file, the AOJ should refer the Veteran s claims file to the September 2018 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran s rheumatoid arthritis.  An additional physical examination should be performed only if deemed necessary by the VA examiner.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran s service treatment records, post-service medical records, and assertions.

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation.

The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran s rheumatoid arthritis manifested in or is otherwise causally or etiologically related to his military service.

If the examiner finds the gap in time between the Veteran s military service and the onset of the disorder to be probative, he or she should provide an explanation of its medical significance.

In rendering his or her opinion, the examiner should consider the following: 1) the Veteran s contention that his periods of prolonged standing in the military caused his current disorder; 2) the December 2008 VA treatment record that noted the Veteran complained of knee, back, and shoulder pain; 3) the July 2009 VA rheumatology record that noted a diagnosis of rheumatoid arthritis with progressive onset over the last six months; and 4) the VA examination findings and opinions of record, including the April 2015 VA examination, December 2015 addendum opinion, and September 2018 VA medical opinion.

(The term  at least as likely as not  does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

5.  The AOJ should review the examination reports to ensure compliance with this remand.  If the reports are deficient in any manner, the AOJ should implement corrective procedures.

J.W. ZISSIMOS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Wulff, Associate Counsel


series: legacy

judge_norm: STEVEN D REISS

judge_role: Veterans Law Judge

disposition: denied

condition: ptsd

text:
��Citation Nr: 19103000

Decision Date: 01/11/19	Archive Date: 01/11/19

DOCKET NO. 12-25 449

DATE:	January 11, 2019

ORDER

An evaluation in excess of 70 percent for posttraumatic stress disorder with depressive disorder and alcohol dependency from June 26, 2001 through September 15, 2005 is denied.

FINDING OF FACT

The Veteran s service-connected PTSD is not manifested by total occupational and social impairment.

CONCLUSION OF LAW

The criteria for a rating in excess of 70 percent for PTSD for the period from June 26, 2001 through September 15, 2005 have not been met.  38 U.S.C. �� 1155, 5107 (2012); 38 C.F.R. � 4.130, Diagnostic Code 9411 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service in the US Navy from October 1968 to October 1971 and from February 1975 to January 1987.

In June 2012, the RO found a clear and unmistakable error in a February 2002 rating decision, that failed to establish service connection for PTSD with alcoholism.  As such, the claim of CUE is no longer before the Board as the decision in June 2012 represented a full grant of the benefits sought on appeal.  As such, this issue is dismissed, and the remaining issue before the Board is entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder with depressive disorder and alcohol dependency from June 26, 2001 to September 15, 2005.

Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder with depressive disorder and alcohol dependency from June 26, 2001 through September 15, 2005.

The Veteran has asserted entitlement to a rating in excess of 70 percent for the period from June 26, 2001 through September 15, 2005 for his service-connected PTSD.  After careful consideration of the record, the Board finds that an increased rating is not warranted.

Disability evaluations are determined by comparing a Veteran s present symptomatology with criteria set forth in the VA s Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. � 4.3.  The Veteran s entire history is reviewed when making disability evaluations.  See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).

Where there is a question as to which of two evaluations is to 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 (2017).

Under 38 C.F.R. � 4.130, Diagnostic Code 9411, which pertains to the Veteran s PTSD, the criteria for a 100 percent rating are 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 and place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. � 130, Diagnostic Code 9411.

Ratings of psychiatric disabilities shall be assigned based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner s assessment of the level of disability at the moment of the examination.  Further, ratings are assigned according to the manifestation of particular symptoms.  However, the various symptoms listed after the terms  occupational and social impairment with deficiencies in most areas  and  total occupational and social impairment  in 38 C.F.R. � 4.130 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).

For the period on appeal, the Veteran s PTSD has been rated as 70 percent disabling.  Upon review of the evidence of record, the Board finds for the period on appeal the Veteran s PTSD has more closely approximated a 70 percent rating because there is insufficient evidence that shows total occupational and social impairment.

To support his claim for an increased rating, the Veteran s daughter submitted a statement, dated May 2017, stating that she has observed the Veteran having social isolation, in that he would often not come to the door, even though he was at home, and she reportedsignificant alcohol abuse during this period.  She also stated that the Veteran became nervous and anxious when near a crowd and that he required someone to be with him when going out in public.  The Veteran also submitted a statement describing the same symptoms.

A VA examination, dated December 2001, notes the Veteran s report of social isolation and spending all his time at home.  The Veteran further reported experiencing crying spells and frequent suicidal thoughts.  Other symptoms of the Veteran s PTSD included disturbed sleep with nightmares, intrusive thoughts as well as feelings of depression.  At this examination, the Veteran did not have evidence of hallucinations, delusions, or psychosis.

The Veteran underwent another VA examination in February 2003.  During the examination, the Veteran reported increased memory loss, worsening nightmares, and that he stayed at home more.  The Veteran reported that he continued to have crying spells, sleep impairment and suicidal thoughts.  The Veteran also reported having no friends and or any relationships with his neighbors.  There was no evidence of hallucinations, or psychosis and the examiner noted that the Veteran s memory was good but his judgment showed some impulsivity.

A review of the treatment notes from this period, note that in June 2002, the Veteran was hospitalized due to alcoholism.  The Veteran was admitted to the hospital in June 2003 to detox from alcohol.  Treatment notes and examinations during this period notes that the Veteran s GAF scores ranged from 35-45.

The Veteran has been rated at 70 percent from June 26, 2001 through September 15, 2005.  The Veteran s PTSD is manifested with symptoms of depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, and difficulty establishing relationships and maintaining effective work and social relationships.

For the period from June 26, 2001 through September 15, 2005, the Board finds that the preponderance of evidence reflects that the Veteran s PTSD symptoms were moderate to severe in nature and caused significant occupational and social impairment; however, they are not manifested by total occupational and social impairment consistent with a 100 percent evaluation under 38 C.F.R. � 4.130.  As the preponderance of the evidence reflects the Veteran is not totally occupationally and socially impaired, a 100 percent rating for PTSD is not warranted.

Ultimately, the preponderance of evidence is against the notion of total social impairment; there is no doubt to be resolved; and a 100 percent rating for PTSD is not warranted.

Lastly, the Board notes that the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) due to his PTSD since June 26, 2001.  In a November 2018 rating decision, the RO found that the Veteran s service connected PTSD prevented him from securing or following a substantially gainful occupation.  Therefore, the Board will not address entitlement to a TDUI during this period, as this has already been granted.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	K. Anderson


judge_norm: A S CARACCIOLO

disposition: granted

condition: knee

condition: headache

disposition: remanded

condition: back

benefit: tdiu

text:
��Citation Nr: 19104000

Decision Date: 01/16/19	Archive Date: 01/16/19

DOCKET NO. 17-00 624

DATE:	January 16, 2019

ORDER

Entitlement to service connection for bilateral pes planus is granted.

Entitlement to service connection for a bilateral knee disability is denied.

Entitlement to service connection for dizziness is denied.

Entitlement to an evaluation in excess of 50 percent for tension headaches is denied.

Entitlement to an effective date prior to November 16, 2015 for service connection for tension headaches is denied.

REMANDED

Entitlement to an evaluation in excess of 10 percent for lumbar spine strain is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Pes planus was noted on entrance to service and underwent an increase in severity during service that is not clearly and unmistakably due to the natural progression of the disease.

2. A bilateral knee disability is not attributable to disease or injury in service or a service-connected disability.

3. The Veteran manifests dizziness as a symptom of his service-connected PTSD and not as a separate disability.

4. The Veteran is assigned the maximum schedular evaluation for tension headaches.

5. The Veteran s claim for service connection for tension headaches was received on April 1, 2016.

CONCLUSIONS OF LAW

1. Pre-existing bilateral pes planus was aggravated by service. 38 U.S.C. �� 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. �� 3.159, 3.303, 3.304 (2018).

2. A bilateral knee disability was not incurred in or aggravated by service or caused or aggravated by a service-connected disability. 38 U.S.C. �� 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. �� 3.159, 3.303, 3.304, 3.310 (2018).

3. The criteria for service connection for dizziness are not established. 38 U.S.C. A. � 1110, 1112, 1113, 1131, 5103A, 5107 (2012); 38 C.F.R. � 3.303 (2018).

4. The criteria for a rating in excess of 50 percent for the Veteran s migraine headache disability have not been met. 38 U.S.C. � 1155 (2012); 38 C.F.R. � 4.124a, Diagnostic Code 8100 (2018).

5. The criteria for an effective date prior to November 16, 2015 for the grant of service connection for tension headaches have not been met. 38 U.S.C. � 5110 (2012); 38 C.F.R. � 3.400 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2004 to March 2014.

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).

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

With chronic disease shown as such in service (or within the presumptive period under � 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. � 3.303(b). With respect to the current appeal, that list includes arthritis. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. � 3.303(d).

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

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. 38 C.F.R. �� 3.304(b).

1. Entitlement to service connection for bilateral pes planus is denied.

In this case, bilateral pes planus was specifically found at the time of the Veteran s July 2004 enlistment examination. Accordingly, the Board finds that it is noted that the Veteran s bilateral pes planus existed prior to acceptance and enrollment for active service. Therefore, the presumption of sound condition does not apply in this case, at least with regard to the Veteran s current pes planus. 38 U.S.C. � 1111. Thus, the Board must consider entitlement to service connection for pes planus on the basis of aggravation of a pre-existing condition.

A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. � 1153 (2012); 38 C.F.R. � 3.306(a) (2018).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. � 1153; 38 C.F.R. � 3.306(b).

Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered  aggravation in service  unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) ( [E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. � 1153 unless the underlying condition is worsened. ); Maxson v. West, 12 Vet. App. 453, 458 (1999) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff d 230 F.3d 1330 (Fed. Cir. 2000).

Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. � 3.306(b) (2018).

The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an  onerous  and  very demanding  evidentiary standard, requiring that the evidence be  undebatable.  See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)).

The Veteran s service records show he was asymptomatic at entrance and he was noted to have moderate pes planus. Service records dated February 2014 show the Veteran requested an excuse from running due to pain in his feet and arches. See March 2014 Examination. Accordingly, the Veteran s bilateral pes planus increased in severity, from asymptomatic to symptomatic, in service. Therefore, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation.

VA obtained a VA examination in July 2016 where the examiner noted the Veteran manifested pes planus but also that the there was only isolated episodes of foot pain during service and no evidence of chronic foot issues. This opinion is in direct contradiction to the finding of pes planus on physical examination asymptomatic on entrance and instances of foot pain during service and thereafter. See July 2016 VA Opinion.

The Board finds the examiner did not offer an opinion that satisfies the formidable evidentiary burden of clear-and-unmistakable-evidence as the examiner did not provide sufficient detail or rationale as to how the Veteran s asymptomatic pes planus became symptomatic during service due to the natural progression of the disease. Thus, the presumption of aggravation has not been rebutted in the instant case.

The Board has considered remanding considering the deficient development noted above, however, there is sufficient evidence that the Veteran s bilateral pes planus was aggravated by service. After considering all the evidence of record, including the Veteran s credible testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  As the Veteran has a current pes planus disability that has been aggravated by service, service connection is warranted.

2. Entitlement to service connection for a bilateral knee disability is denied.

The Veteran contends he is entitled to service connection for right and left knee disabilities, as he believes that these disabilities are related to in-service injuries. Alternatively, the Veteran contends his lumbar spine disability caused or aggravated his bilateral knee disabilities. See November 2015 VA Form 21-526b

With respect to current disability, a December 2016 VA examination and opinion shows the Veteran has bilateral knee strain. See December 2016 VA Opinion.

With regard to in-service disease or injury, service treatment records show the Veteran reported bilateral pain with extension in July 2009; however, later examination revealed normal function of both knees and his separation physical contains no indication of chronic knee disability. See December 2016 VA Opinion.

As to a causal relationship between disease or injury in service and his current bilateral knee strains, the evidence preponderates against a finding of nexus. In particular, a December 2016 VA examiner opined that the Veteran s bilateral knee conditions were less likely than not related to service.

The VA examiner noted the Veteran s in-service injuries and considered his contention of the onset of bilateral knee pain in service and since separation; however, the examiner found that the medical evidence of record showed he separated from active duty without evidence of knee disability. The examiner also opined that the Veteran s service-connected lumbar spine disability did not cause or aggravate his bilateral knee strain. The examiner offered rationale in support of his opinion, noting lumbar strains do not produce abnormal strain on the knee and that there was no objective medical evidence of abnormal bilateral knee strain on physical examination. The Board notes the examiner considered the Veteran s complaints of bilateral knee pain in service, his post-service medical history, and his statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In any event, the probative value of the Veteran s general assertions regarding the etiology of his right and left knee strains are outweighed by the probative value of the specific, reasoned opinion of the physician who provided the December 2016 VA opinion. Based on the foregoing, the preponderance of the evidence is against the claims for service connection for right and left knee disabilities. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

3. Entitlement to service connection for dizziness is denied.

The Veteran contends he is entitled to service connection for dizziness, as he believes that this disability is related to in-service injuries. See April 2016 Correspondence.

With respect to current disability, an August 2016 VA examination indicates the Veteran does not have dizziness disability, but that his complaints of dizziness were a stress-related symptom of his PTSD. See August 2016 VA Opinion.

The Board notes the examiner indicated that a complete neurological examination was conducted and that the Veteran demonstrated normal results. The Board also notes that an October 2016 VA treatment note shows the Veteran had good performance on a basic clinical assessment of balance regarding his complaints of intermittent dizziness. See October 2016 VA Medical Record.

The Board attributes greater probative value to the August 2016 VA opinion than the Veteran s opinion as it is supported by physical examination, is consistent with the evidence of record, and contains rationale for the examiner s findings. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Based on the foregoing, the Veteran s symptoms of dizziness are associated with his service-connected PTSD and is not a separate and distinct disability for which service connection can be granted. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence is against the claim for service connection for dizziness. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert, supra.

4. Entitlement to an evaluation in excess of 50 percent for migraine headaches is denied.

The RO has assigned the Veteran s migraine headaches a 50 percent evaluation under 38 C.F.R. � 4.124a, Diagnostic Code 8100 (2018).

Pursuant to Diagnostic Code 8100, a maximum rating of a 50 percent is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. As the highest rating has been awarded, the Board concludes that the Veteran is not entitled to a higher schedular rating. There are no other diagnostic codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Because the Veteran is at the maximum schedular rating for headaches (50 percent), there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the schedular component of the Veteran s increased rating claim must be denied.

The Board has considered whether the Veteran s migraine headaches present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the Director, Compensation Service for consideration of an extraschedular rating is warranted. See 38 C.F.R. � 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ( [R]ating schedule will apply unless there are  exceptional or unusual  factors which render application of the schedule impractical. ). In this case, neither the Veteran nor his representative has raised any extraschedular concerns with regard to the Veteran s headaches. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Veteran s claim, that doctrine is not applicable and the claim is denied. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Gilbert, supra.

5. Entitlement to an effective date prior to November 16, 2015 for service connection tension headaches is denied.

The Veteran seeks earlier effective dates for the grants of service connection for tension headaches. For the following reasons, the Board finds that earlier effective dates for these disabilities are not warranted.

Unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. 38 U.S.C. � 5110(a); 38 C.F.R. � 3.400. The term  claim  or  application  means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. � 3.1(p) (2018).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. �� 3.151, 3.155 (2018).

In this case, the Veteran filed a claim for service connection for headaches that was received on April 1, 2016. Service connection was subsequently granted in an August 2016 rating decision, and an effective date of November 15, 2015 was assigned, based on the date VA received claims for bilateral knee, hearing loss and tinnitus. See November 2015 VA Form 21-526b. The Board finds that there is no communication of record that could serve as the basis for an earlier effective date under 38 U.S.C. � 5110(a).

Indeed, the April 2016 claim was the first correspondence of record in which the Veteran mentions a headache disability of any sort. (The Veteran has provided no specific arguments in support of an earlier effective date.)

The Board acknowledges that the record shows the Veteran had symptoms of headaches prior to the November 15, 2015 effective date. In particular, his VA outpatient records reflect treatment for tension headaches that pre-date his claim for service connection. Notwithstanding, while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. � 3.157(b) (2014), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment or hospital admission. The Veteran does not assert, and the evidence of record does not reflect, that either situation applies here with respect to his tension headache disability. In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to his headache disability prior to the April 1, 2016 claim. See 38 C.F.R. � 3.1(p) (2018).

While it is to the benefit of the Veteran that the RO assigned an effective date based on an earlier claim, there is no legal basis for awarding an effective date earlier than November 15, 2015 for service connection for tension headaches. 38 U.S.C. � 5110 (a); 38 C.F.R. � 3.400. The Board is grateful for the Veteran s honorable service, and this decision in no way detracts from the Veteran s service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against the claims and they cannot be granted.

REASONS FOR REMAND

6. Entitlement to an evaluation in excess of 10 percent for lumbar spine strain is remanded.

The Veteran was last afforded a VA examination for his lumbar spine disability in June 2016. Since that time, he has asserted that his lumbar spine disability is worse than reflected by the June 2016 VA examination and that he is unable to obtain or maintain employment. See September 2016 Correspondence. In addition, the Board notes that the June 2016 examination report does not comply with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Consequently, an updated examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination).

7. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

The Veteran contends that his service-connected disabilities render him unemployable. The Board finds that the issue of entitlement to a TDIU is inextricably intertwined with the increased-rating claim discussed above, and therefore must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain all outstanding VA medical records pertaining to the Veteran.

2. Schedule the Veteran for an examination of the current severity of his lumbar spine disability. The examiner must test the Veteran s active motion, passive motion, and pain with weight-bearing and without weight-bearing.

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES  SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report.

The examiner should identify any symptoms and functional impairments due to the Veteran s lumbar spine strain symptoms, and discuss the effect of these symptoms on occupational functioning.

 A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	 J. Trickey


judge_norm: DEBORAH W SINGLETON

condition: diabetes

text:
��Citation Nr: 19105000

Decision Date: 01/22/19	Archive Date: 01/22/19

DOCKET NO. 16-48 102

DATE:	January 22, 2019

ORDER

Entitlement to an effective date prior to January 30, 2012, for service connection for diabetes mellitus, type II, is denied.

FINDINGS OF FACT

1.  The Veteran had active service in the U.S. Navy from June 1963 to March 1967 and he served aboard the U.S.S. Oxford in the waters off the coast of Vietnam but not in the inland waterways of Vietnam and he did not set foot in Vietnam.

2.  The Veteran s original claim for service connection for diabetes mellitus, type II, was received by VA on July 14, 2008.

3.  The Veteran did not appeal an April 2009 rating decision that denied service connection for diabetes mellitus, type II, of which he was notified; no additional relevant VA records were received within one year of the April 2009 rating decision.  The April 2009 rating decision is final.

4.  The Veteran applied to reopen his claim for service connection for diabetes mellitus, type II, on January 30, 2012.

5.  Additional service records were received on March 19, 2012.

6.  On the basis of the additionally received service records, an August 15, 2012, rating decision granted service connection for diabetes mellitus, type II, effective January 30, 2012.

7.  Because it was found that the U.S.S. Oxford was in the offshore waters of Vietnam and did not transit the inland waters of Vietnam, and because the Veteran did not set foot in Vietnam, service connection for diabetes mellitus, type II, was severed effective November 1, 2017, in an August 21, 2017, rating decision, because of the clear and unmistakable error that was found in the August 2012 rating decision which granted service connection.

CONCLUSION OF LAW

The April 2009 rating decision which denied service connection for diabetes mellitus, type II, is final.  38 U.S.C. � 7105 (2012); 38 C.F.R. � 20.1103 (2018).

The criteria for an effective date prior to January 30, 2012, for service connection for diabetes mellitus, type II, have not been met.  38 U.S.C. �� 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. �� 3.1, 3.102, 3.155, 3.156, 3.159, 3.400 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the U.S. Navy from June 1963 to March 1967.  His military decorations were the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.  He had 3 years, 2 months, and 23 days of foreign and/or sea service and when discharged his last station was the U.S.S. Vesuvius.

This matter comes before the Board of Veterans  Appeals (Board) from a decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified in support of his claim for an earlier effective date for service connection for diabetes mellitus, type II, at the RO in October 2014 and a transcript thereof is on file.

Hypertension

In September 2016, the Veteran filed VA Form 21-0958, Notice of Disagreement (NOD), to a September 2016 rating decision which confirmed and continued a prior denial of service connection for hypertension, claimed as due to inservice herbicide exposure.

The Veteran has requested a hearing at the RO in conjunction with his NOD as to the September 2016 rating decision which confirmed and continued a prior denial of service connection for hypertension, claimed as due to inservice herbicide exposure.  A hearing at the RO was scheduled for August 21, 2018, of which the Veteran was notified by RO letter of July 18, 2018.  However, a VA Form 27-0820, Report of General Information, shows that the Veteran cancelled that hearing and specifically did not want it to be rescheduled.

A Statement of the Case (SOC) was issued on November 8, 2018, addressing entitlement to service connection for hypertension.  However, that appeal was never perfected by the timely filing of a Substantive Appeal, VA Form 9 or equivalent.

Severance

This case differs from many other cases in which an earlier effective date is sought for a grant of service connection because, in this case, service connection has been severed for diabetes mellitus, type II.

Historically, by RO letter of April 4, 2009, the Veteran was notified of a rating decision earlier that month which denied service connection for diabetes mellitus, type II.  The claim was denied because the Veteran had failed to attend a scheduled VA examination and because a response to a  3101 Request for Information  and the Veteran s DD 214 failed to show service in Vietnam.

The Veteran did not appeal the April 2009 decision.

Received on January 30, 2012, was VA Form 21-526b, Veteran s Supplemental Claim for Compensation, in which the Veteran applied, in pertinent part, for service connection for cataracts due to diabetes.  In an attached VA Form 21-4138, Statement in Support of Claim, he reported having been exposed to Agent Orange when he served on the U.S.S. Oxford.

An August 2012 rating decision granted service connection for diabetes mellitus, type II, effective the date of receipt of the application to reopen that claim on January 30, 2012.  He was notified of that decision by RO letter of August 26, 2012.

The Veteran s Notice of Disagreement (NOD) as to the January 30, 2012, effective date for the grant of service connection was received in July 2013.

A September 14, 2016, rating decision proposed to sever service connection for diabetes mellitus, type II, because the rating decision of August 15, 2012, was clearly and unmistakably erroneous for granting service connection for diabetes mellitus with pseudophakic cataracts.  Although the U.S.S. Oxford was in the offshore Vietnam waters, there was no evidence that the Veteran went ashore to Vietnam or that the vessel transited inland waters.  The presumption to exposure to herbicides should not have been conceded based on service on the U.S.S. Oxford.

The Veteran was notified of the proposed severance of service connection for diabetes mellitus, type II, by RO letter of November 29, 2016.

Received on March 28, 2017, was VA Form 21-4138, Statement in Support of Claim, from the Veteran in which he responded to the proposed severance of service connection for diabetes mellitus, type II.  He opposed the severance of service connection and specifically requested that service connection not be severed for his service-connected diabetes.  He provided a duplicate copy of the article or report stating that the  USS Oxford (AGTR-1) [Technical Research Ship] [sic] conducted numerous month-long deployments along the Vietnam coast collecting data, with evidence that crewmembers went ashore, between 1965 and 1969.

This article differs from that previously of record in that the prior article or report suggests that there was a likelihood that crewmember went ashore, whereas this more recent article or report states that there was  evidence  that crewmembers went ashore.

An August 21, 2017, rating decision severed service connection for diabetes mellitus, type II, effective November 1, 2017, because the rating decision of August 15, 2012 that granted diabetes mellitus, type II with pseudophakic cataracts was clearly and unmistakably erroneous.  Although the U.S.S. Oxford was in the offshore Vietnam waters, there is no evidence that the Veteran went ashore to Vietnam or that the vessel transited inland waters.  The Veteran had responded to the proposal to sever and again reported serving aboard the U.S.S. Oxford off the coast of Vietnam but never indicated that he had disembarked in Vietnam when it docked in DaNang.  The presumption to exposure to herbicides should not have been conceded based solely on service onboard the U.S.S. Oxford.

The Veteran was notified of the severance of service connection for diabetes mellitus, type II, by RO letter of August 28, 2017.

The Veteran s VA Form 21-4138, Statement in Support of Claim, of March 28, 2017, was an objection to the proposal to sever service connection and not to the actual rating decision in August 2017 which severed service connection.  Thus, he did not initiate an appeal from the severance of service connection for diabetes mellitus, type II, and that decision is final.

This appeal has been advanced on the Board s docket pursuant to 38 C.F.R. � 20.900(c) (2018).  38 U.S.C.A. � 7107(a)(2) (West 2014).

Governing Law and Regulations

The assignment of effective dates of awards is generally governed by 38 U.S.C. � 5110 and 38 C.F.R. � 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C. � 5110(a).  If a claim for service connection is received within one year from the day following separation from service, upon a grant of that benefit, the effective date will be the day after discharge from service.  38 U.S.C. � 5100(a); 38 C.F.R. � 3.400(b)(2)(i).

With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application.  See 38 C.F.R. � 3.400(q), (r).  Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence, other than service department records received after final disallowance, will be the date of receipt of the new claim or the date that entitlement arose, whichever is later.  38 C.F.R. � 3.400(q)(1)(ii).

Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. � 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).   VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established.

The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).  Merely seeking treatment does not establish a claim, to include an informal claim, for service connection.  Further, the mere presence of a disability does not establish an intent on the part of the Veteran to seek service connection for that condition.  See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995).

Background

The Veteran s service treatment records (STRs) are negative for diabetes.  These show that in July 1964 and March 1965 he served aboard the U.S.S. Oxford (AGTR-1).  In January and April 1966 he served aboard the U.S.S. Oxford (AGTR-1).  In August 1968 and in September 1966 he aboard the U.S.S. Vesuvius (AE-15).

The Veteran s original claim for service connection for diabetes mellitus, type II, was received on July 14, 2008.  He reported that he had served in Vietnam from June 1, 1965, to November 1, 1966.  He alleged that he was exposed to Agent Orange in Vietnam, and his diabetes had begun in 2007.  It was requested that he be scheduled for a VA examination.

VA treatment records from 2007 to 2008 document that the Veteran had diabetes mellitus, type II, for which he was treated.

Associated with the Veteran s VA record in July 2008 is a report created by VA containing a resource for determining whether a particular U.S. Navy or Coast Guard veteran of the Vietnam Era is eligible for the presumption of Agent Orange herbicide exposure based on operations of the particular veteran s ship.  At page 12, it states that the  USS Oxford (AGTR-1) [Technical Research Ship] [sic] conducted numerous month-long deployments along the Vietnam coast collecting data, with likelihood that crewmembers went ashore, between 1965 and 1969.

Of record is a November 2008 Notice of Failure to Report for VA Examination.

In response to a request to furnish dates of service in Vietnam, in December 2008 the service department reported that it could not be determined whether the Veteran was in the Republic of Vietnam.  He had served aboard the U.S.S. Oxford (AGTR-1) which was in the official waters of the Republic of Vietnam from  07/04/1965 to 07/13/1965, 07/26/1965 to 08/27/196 [sic], 09/05/1965 ONE DAY, 10/24/1695 to 10/26/1965, 11/12/1965 to 12/06/1965.  HOWEVER, THE RECORD PROVIDES NO CONCLUSIVE PROOF OF IN-COUNTRY SERVICE.

In March 2012 the RO again requested information as to whether the Veteran had duty or visitation to Vietnam.

Along with VA Form 21-4138, Statement in Support of Claim, in March 2012, the Veteran submitted service records of his military  Leave Account  which show that he earned credits for leave by virtue of service on the U.S.S. Oxford from December 14, 1963, to June 30, 1965; and service aboard the U.S.S. Vesuvius from January 22, 1966, to March 23, 1967.  Also attached was an article from a sailor s association which states that the ships listed by the Secretary of the Navy as  Blue Water  Vietnam Service, included the U.S.S. Vesuvius AE-15.

Received in March 2012 were service personnel records.  These show that the Veteran served aboard the U.S.S. Oxford in 1963, and that he later served aboard the U.S.S. Vesuvius.

A January 16, 1966 record shows that he was authorized to wear the Vietnam Service Medal for service aboard the U.S.S. Oxford in the Vietnam Combat Zone from June 18th to July 13th 1965; July 26th to August 27th 1965; on September 5, 1966; the 24th to 26th of October 1965; and from November 12th to December 6th 1965.

On December 6, 1966, he was authorized to wear the Republic of Vietnam Campaign Medal with Device for service aboard the U.S.S. Vesuvius (AE-15) and U.S.S. Oxford (AGTR-1) in direct support of Combat Forces in the Vietnam area of Operations from November 12, 1965, to December 6, 1965, on the U.S.S. Oxford and on the U.S.S. Vesuvius (AE-15) from June 13th to the 30th 1966; the 1st to the 4th and 17th to the 31st of July 1966; 1st to the 3rd and 14th to the 31st of August 1966; the 7th to the 25th of 91966, and 6th to the 25th of October 1966.

On VA examination in April 2014 the diagnosis was that the Veteran had diabetes mellitus, type II.

At the October 2014 RO hearing the Veteran testified that the ships on which the Veteran served included the U.S.S. Oxford (AGTR-1) which had transited the Mekong Delta.  He had been diagnosed as having diabetes in 2005 or 2006 at a VA clinic.  After filing his original VA claim for service connection for diabetes in July 2008, he had not attended a scheduled VA examination because he had heard that he was not eligible for compensation because he had not had  boots  on the ground in Vietnam.  This was also the reason that he did not appear the VA rating decision in April 2009 which denied service connection for diabetes.  See pages 4, 5, and 7 of the transcript.

The Veteran testified that after obtaining information about the U.S.S. Oxford, he had refiled a claim for service connection for diabetes in 2012.  He believed that the grant of service connection should have been retroactive to his original claim in July 2008.

In February 2016 the RO submitted a request to the Joint Service Records and Research Center (JSRRC) to verify whether the Veteran s ship, U.S.S. Oxford (AGTR-1) went into the Mekong Delta while he was aboard and whether that ship was in any of the brown waters of Vietnam from July 26, 1965, to August 27, 1965.

Of record is an April 2016 response from the Defense Personnel Records Information Retrieval System (DPRIS) which reflects that during several periods from 1965 to 1967 the U.S.S. Oxford conducted technical research off the coast of Vietnam.  A review of deck logs showed that it has anchored in in DaNang Harbor on August 10, 1965 and left that port that same day, anchoring for one day again on August 25, 1965.  During the brief anchorage in DaNang Harbor no one is recorded as having departed the ship.  The history and deck logs did not document that the ship docked, transited inland waters or that ships personnel stepped foot in the Republic of Vietnam.

A June 29, 2016, letter from the RO to the Modern Military Branch of the National Archives stating that the Veteran alleged exposure to Agent Orange while aboard the U.S.S. Oxford (AGTR 1) and reported that the ship went into the Mekong Delta River while he was aboard.  It was requested that deck logs be reviewed for the following time period and report whether the ship was in any of the brown waters of Vietnam during the period from September 5, 1965, to December 6, 1965.  The Veteran was informed of this request by RO letter of June 30, 2016.

By letter of July 21, 2016, the National Archives replied and provided copies of the deck logs of the U.S.S. Oxford (AGTR 1) from September 5, 1965, to December 6, 1965.  It was stated, in summary, that after a search of the Deck Logs during the requested dates, the ship anchored in Vietnam on October 25, 1965, November 23 .26, 1965 and December 5, 1965.  The deck logs show that on October 25, 1965, the ship anchored in Cam Rahn Bay for less than one full day.  It anchored at DaNang Harbor on December 5, 1965, for less than one full day.

An August 4, 2016, Formal Administrative RO decision reflects that it was found that:

In review of the Veterans service personnel records indicates that the Veteran served aboard the USS Oxford (AGTR-1) from January 1, 1964 until January 17, 1966.  The USS Oxford (AGTR_1) is listed on the Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, however the USS Oxford is listed as operating Vietnam's close coastal waters for extended periods with evidence that crew members went ashore.

On May 26, 2016, we received a response from our request from Joint Services Records Research Center to review deck logs and whether personnel went ashore.  JSRRC reported "We reviewed the 1965 command history submitted by the USS Oxford (AGTR-1) from May 1965 to August 1965, the history and deck logs do not document that the ship transited inland waters or that ships personnel stepped foot in the Republic of Vietnam".

On June 29, 2016, we requested deck logs from National Archives. On July 25, 2016, we received our response and deck logs for the period October 25, 1965, November 23-26, 1965 and December 5, 1965.  Our review does not report that ships personnel stepped foot in the Republic of Vietnam".

In summary, the RO found that based on the additional evidence received it was unable to corroborate that the Veteran went ashore and was exposed to herbicides (Agent Orange) while aboard the USS Oxford (AGTR-1).  Agent Orange Exposure was not corroborated.

Analysis

Here, at the hearing, the Veteran conceded that he had received notice of the prior denial of service connection for diabetes mellitus, type II, and he did not appeal that decision.  Typically, when there is a prior final rating decision, a claimant must submit new and material evidence to reopen the claim and if the claim is reopened and granted, the effective date cannot be earlier than the new claim.  See 38 C.F.R. �� 3.156(a); 38 C.F.R. � 3.400(q), (r).  In this case, it is neither alleged nor otherwise shown by the evidence of record that after the denial of his original claim for service that he submitted an application to reopen that claim prior to January 30, 2012.

There are exceptions to the finality of prior rating which deny service connection for a disability.  Under 38 C.F.R. � 3.156(b) new and material evidence received prior to the expiration of the appeal period following the April 2009 denial of service connection for diabetes mellitus, type II, such evidence will have been considered as having been filed in connection with the claim that was pending.  However, in this case no new and material evidence was received within one year of the April 2009 rating decision.

Another exception, under 38 C.F.R. � 3.156(c), is the receipt of additional service records.  In such a case, the original claim is to be readjudicated as if such evidence was on file at the time of the initial adjudication.

As applied to this case, additional service records were received after the April 2009 initial denial of service connection for diabetes mellitus, type II.  In sum, these records were initially misinterpreted as showing that the Veteran did have  brown  water service in Vietnam.  However, upon correction of this clear and unmistakable error, service connection was subsequently severed because there was no  brown  water service, i.e., the Veteran did not serve on a vessel that transited the inland waterways of Vietnam, with anchorage at a deep water port such as in DaNang or Cam Rahn Bay also not constituting  brown  water service; and he essentially acknowledged at this hearing that he had never actually set foot (boots on the ground) in Vietnam.

Consequently, as the additional service records do not establish entitlement to service connection, the provisions of 38 C.F.R. � 3.156(a) and (c) are not applicable.  So, because there was no basis for service connection prior to receipt of the application to reopen the claim for service connection for diabetes mellitus, type II, on January 30, 2012, an earlier effective date is not warranted.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	Department of Veterans Affairs


judge_norm: LESLEY A REIN

benefit: pension

text: The Agency of Original Jurisdiction (AOJ) having properly suspended the Veteran’s pension benefits, effective from October 24, 2014 to April 27, 2015, based on his status as a fugitive felon, the appeal is denied.

text: The AOJ having properly suspended the Veteran’s pension benefits, effective from May 11, 2016 to March 13, 2017, based on his incarceration, the appeal is denied.

text:
��Citation Nr: 19106000

Decision Date: 01/25/19	Archive Date: 01/24/19

DOCKET NO. 16-49 893A

DATE:	January 25, 2019

ORDER

The Agency of Original Jurisdiction (AOJ) having properly suspended the Veteran s pension benefits, effective from October 24, 2014 to April 27, 2015, based on his status as a fugitive felon, the appeal is denied.

The AOJ having properly suspended the Veteran s pension benefits, effective from May 11, 2016 to March 13, 2017, based on his incarceration, the appeal is denied.

FINDINGS OF FACT

1. The Veteran began receiving non-service connected pension benefits in 2007 and special monthly pension based on a need for aid and attendance in 2010.

2. The AOJ suspended these benefits from October 24, 2014 to April 27, 2015, based on a warrant being outstanding for the Veteran s arrest, and from May 11, 2016 to March 13, 2017, based on the Veteran being incarcerated.

3. From October 24, 2014 to April 27, 2015, the Veteran met the definition of  fugitive felon  by violating a condition of probation.

4. The Veteran was convicted of a felony on March 11, 2016, and, thereafter, until March 13, 2017, was incarcerated at county and state correctional facilities.

CONCLUSIONS OF LAW

1. The AOJ properly suspended the Veteran s pension benefits, effective from October 24, 2014 to April 27, 2015, based on his status as a fugitive felon.  38 U.S.C. � 5313B; 38 C.F.R. � 3.666.

2. The AOJ properly suspended the Veteran s pension benefits, effective from May 11, 2016 to March 13, 2017, based on his incarceration.  38 U.S.C. �� 1505, 5313; 38 C.F.R. � 3.666.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In a rating decision dated August 2007, the AOJ awarded the Veteran nonservice-connected pension benefits.  In a rating decision dated September 2011, the AOJ awarded the Veteran special monthly pension based on a need for regular aid and attendance.  These awards were in effect in January 2015, when the AOJ learned from the Veteran s estranged spouse that the Veteran was incarcerated.

The AOJ researched the claim and, according to the Corrections Offender Network, the Veteran was convicted of three offenses in March 2014, including exploiting the elderly or disabled, uttering forged bills and grand theft, all felonies in Florida, and, in August 2014, had initially been sentenced to supervised drug offender probation.  According to a VA and SSA State Prisoner Computer Match, thereafter, beginning October 13, 2014, due to a probation violation, he was confined in a county correctional facility.

By letters dated March, October and November 2015, the AOJ informed the Veteran that it proposed to suspend his pension benefits, effective October 25, 2014, based on information showing that he had been incarcerated since August 25, 2014.  In December 2015, the AOJ implemented the proposed action and notified the Veteran of the law and regulations supporting such action.

The Veteran appealed this action and, in a January 2015 notice of disagreement, indicated that, although he had been incarcerated since October 5, 2015, he did not expect to be convicted of anything and therefore VA should resume paying him pension benefits.  The AOJ then began processing his appeal and, while doing so, learned that there had been a warrant outstanding for the Veteran s arrest and, as such, for a certain period, had been considered a fugitive felon.  Meanwhile, in November 2017, the Veteran submitted a document from Orange County Correctional Department, showing that he had been incarcerated on six occasions between March 29, 2014 and March 2016, but not continuously.  Based on the content of the foregoing documents, the AOJ retroactively adjusted its original action to reflect two periods of suspension: (1) from October 24, 2014 to April 27, 2015, based on the Veteran s status as a fugitive felon; and (2) from March 31, 2016 to March 13, 2017, based on his most recent period of incarceration.  The Board has since recharacterized the original claim, which focused on one period of suspension, October 26, 2014 to March 13, 2017, based on incarceration, to accurately reflect the AOJ s adjustment.

Suspensions

Whether the AOJ properly suspended the Veteran s pension benefits, effective from October 24, 2014 to April 27, 2015

On October 24, 2014, Orange County, South Orlando, Florida, issued a warrant for the Veteran s arrest for a violation of his probation (warrant offense code 5012) for the felonies committed in March 2014.  According to a May 2018 Report Of General Information, detailing a conversation between Orange County and VA, the warrant was not cleared until April 28, 2015.

The Veteran, being the subject of this arrest warrant, was therefore considered a  fugitive felon  by law enforcement authorities during the period noted, from October 24, 2014 to April 28, 2015.  Pension benefits are not payable on behalf of a veteran for any period during which he or she is a fugitive felon.  38 U.S.C. � 5313B; 38 C.F.R. � 3.666(e)(1).

A  fugitive felon" is a person who: (a) is fleeing to avoid prosecution, or custody or confinement after conviction, for a felony offense or an attempt to commit such an offense; or (b) violates a condition of probation or parole imposed for commission of a felony under Federal or State law. 38 C.F.R. � 3.666(e)(2). A "felony" includes a high misdemeanor under the laws of a state that characterizes as high misdemeanors offenses considered felonies under Federal law. 38 C.F.R. � 3.666(e)(3) (2015).

Here, the Veteran is not disputing his fugitive felon status based on the October 24, 2014 probation violation.  He has, however, submitted a document indicating that, during a portion of this period, from October 13, 2014 to February 2, 2015, he was confined in a county correctional facility.  Consequently, he might not have known that there was a warrant out for his arrest.  Regardless, the statute barring veterans from receiving VA benefits while they are "fugitive felons" does not require an adjudication of guilt or knowledge of any outstanding arrest warrant.  Mountford v. Shinseki, 24 Vet. App. 443 (2011).

According to a January 2016 FFP-3 VA Investigative Summary Form, the Veteran was arrested on January 6, 2015.  The Veteran was in jail at the time.  The Board is curious, why, after charging him with the probation violation in January 2015, the county waited until April 28, 2015 to clear the warrant, but this curiosity need not be satisfied.  That is the date on record of the warrant s clearance.  The Veteran does not allege, and there is no evidence of record indicating, that the warrant was defective or issued because of government error, or that a court has found the effective date of the warrant s clearance to be earlier than April 28, 2015.

Considering this, the AOJ properly suspended the Veteran s pension benefits for the period during which he qualified as a fugitive felon, from October 24, 2014 to April 27, 2015, action mandated by law.  As the law and not the evidence is dispositive of the claim, the claim must be denied based on a lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426.

Whether the AOJ properly suspended the Veteran s pension benefits, effective from March 31, 2016 to March 13, 2017

The Orange County Correctional Department has confirmed that, on March 11, 2016, the Veteran was convicted of violating his probation for the felonies he committed in March 2014.  Based on this conviction, he was incarcerated from March 31, 2016 to March 13, 2017, and the AOJ suspended his pension benefits, effective May 11, 2016 to March 13, 2017.

When the AOJ initially suspended these benefits, effective October 26, 2014 to March 13, 2017, the Veteran argued that he was not incarcerated during the entire period noted and submitted a document substantiating his argument.  He also argued that he did not think he was going to be convicted of any crime and submitted a January 2015 document,  Nolle Prosequi , which showed abandonment of a battery (domestic violence) action, to substantiate that argument.  Thereafter, the AOJ adjusted its original suspension to cover less time, and, since then, the Veteran has not disputed that he was incarcerated for commission of a felony between March 31, 2016 and March 13, 2017.  In any event, court records indicate that, even though one action was abandoned in 2015, the Veteran remained confined in 2016 and 2017, based on a probation violation associated with separate felony actions.

If an individual to or for whom pension is being paid under a public or private law administered by VA is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments are to be discontinued effective on the 61st day of imprisonment following conviction. The payee is to be informed of his or her rights while he or she is imprisoned as well as the conditions under which payments to him or to her may be resumed on his or her release from imprisonment.  Pension benefits are to be resumed as of the day of release if notice is received within 1 year following release; otherwise resumption will be effective the date of receipt of such notice.  38 U.S.C. �� 1505, 5313; 38 C.F.R. � 3.666.

Here, the AOJ notified the Veteran of the proposed and implemented suspension of his pension benefits, advised him of his rights regarding the action, and suspended his pension benefits, effective May 11, 2016, the 61st day of his imprisonment.  The AOJ resumed paying the Veteran his pension benefits, effective March 14, 2017, the day of his release from prison.  The AOJ thus properly suspended the Veteran s pension benefits, from May 11, 2016 to March 13, 2017, based on the incarceration.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	L. N., Counsel


judge_norm: COREY L BOSELY

judge_role: Acting Veterans Law Judge

condition: tinnitus

condition: psychiatric

text:
��Citation Nr: 19107000

Decision Date: 01/30/19	Archive Date: 01/29/19

DOCKET NO. 14-28 710

DATE:	January 30, 2019

ORDER

Entitlement to service connection for tinnitus is granted.

REMANDED

Whether new and material evidence has been received to reopen the previously denied claim of service connection for depression and anxiety not otherwise specified, is remanded.

FINDINGS OF FACT

Resolving reasonable doubt in the Veteran s favor, his tinnitus is at least as likely as not related to noise exposure during service.

CONCLUSIONS OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. �� 1110, 1111, 1131, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2006 to March 2006, from April 2006 to October 2006, and from November 2009 to December 2009.

In a November 2016 decision, the Board of Veterans  Appeals (Board) remanded this matter for further development.  The Board finds that the Regional Office (RO) complied with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

During the pendency of the appeal, the RO granted the Veteran service connection for bilateral hearing loss and erectile dysfunction secondary to service-connected lumbar spine disability.  Therefore, these service connection issues are not in appellate status and the Board has characterized the rating issue as it appears above.  See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO s award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran s notice of disagreement on such issue).

Service Connection

In general, the relevant law provides that a veteran be entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. � 3.303(d).

Certain chronic diseases, including tinnitus, may be presumed to have been incurred in or aggravated by service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C. �� 1101, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

1. Service connection for tinnitus

The Veteran alleges that his current tinnitus is related to his in-service noise exposure.

It is not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it).  See Charles v. Principi, 16 Vet. App. 370, 374 (2002).  The Board finds no reason to question the Veteran s accounts that he experiences ringing in his ears.

Following a June 2018 VA examination, the examiner did not opine as to the etiology of the Veteran s tinnitus as the Veteran did not report tinnitus to the examiner at the time of the examination.

However, tinnitus may be subject to service connection based upon continuity of symptomatology as an  organic disease of the nervous system  under 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015).  In this regard, the Veteran has stated that his tinnitus symptoms began during service and continued since that time.

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  Here, the Board finds the Veteran credible in his reports that tinnitus began in service and has continued ever since.  The Veteran s statements regarding onset are consistent with the circumstances of his service and with the record as a whole.  Therefore, the Board finds him credible in this regard.

In light of the above, the Board finds the evidence is at least in equipoise.  Under the benefit of the doubt rule, where there exists  an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,  the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).

Resolving all reasonable doubt in the Veteran s favor, the Board concludes that service connection for left ear hearing loss and tinnitus is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for depression and anxiety not otherwise specified, is remanded.

On June 18, 2018, the appellant submitted a notice of disagreement (NOD) with a June 5, 2018 denial of reopening of a May 2015 rating decision denying a petition to reopen the claim of service connection for an acquired psychiatric disorder including depression and anxiety.  (Although the RO listed these issues separately, they are related, so are now identified together.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).)

The claims file does not contain a copy of the rating decision accompanying this notification letter.  However, the June 2018 notification letter contained all the necessary information to inform the Veteran of the denial.  He filed the NOD corresponding to this decision.

The RO has not sent the Veteran a statement of the case (SOC).  The Veteran has not withdrawn this issue in writing.  As a result, the Board is required to remand the issue of entitlement to service connection for the cause of the Veteran s death for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999).

The matter is REMANDED for the following action:

(Continued on the next page)

Send the Veteran a statement of the case that addresses the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for depression and anxiety not otherwise specified.  If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.

Corey L. Bosely

Acting Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	V. Woehlke, Associate Counsel


judge_norm: A JAEGER

text:
��Citation Nr: 19108000

Decision Date: 02/01/19	Archive Date: 02/01/19

DOCKET NO. 16-28 155

DATE:	February 1, 2019

REMANDED

Entitlement to service connection for a lumbar spine disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1986 to January 1989. This matter comes before the Board of Veterans  Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In December 2017, the Board denied service connection for a lumbar spine disorder and the Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board s December 2017 decision to the extent that it denied service connection for a lumbar spine disorder.  Such matter now returns to the Board for further appellate review. The Board further notes that the December 2017 decision also remanded numerous service connection claims for additional development.  However, as such development has not yet been completed and the issues have not been recertified, they are not presently before the Board.

Entitlement to service connection for a lumbar spine disorder.

In the December 2017 decision, the Board denied service connection for a lumbar spine disorder on the basis that such was not shown to be related to his military service, and arthritis did not manifest to a compensable degree in his first post-service year.  In addressing whether VA s duties to notify and assist had been satisfied, the Board noted that the Veteran had been medically evaluated; however, it is clear that he had not been afforded a VA examination in connection with his claim for service connection for a lumbar spine disorder.  In this regard, the September 2018 JMPR found that a remand was necessary in order for the Board to address whether a VA examination or opinion was necessary to decide such claim.  The parties further directed that the Board consider a January 16, 1987, service treatment record that reflected that the Veteran experienced right rib pain and right back pain during inhalation.

Upon review of the record, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of his lumbar spine disorder.  In this regard, as noted previously, a January 1987 service treatment record reflects that complaints of right rib and back pain during inhalation.  Additionally, in a January 2015 statement, the Veteran reported that his lower back pain began while carrying heavy backpacks and weapons during 20-mile marches in service.  Further, he has been diagnosed with a lumbar spine disorder, to include lumbar strain and herniated nucleus pulposus, during the pendency of the claim, and has reported a continuity of back symptomatology since service.  Therefore, as there is an indication that a current lumbar spine disorder may be related to the Veteran s military service, a VA examination with an etiological opinion is necessary to decide the claim.

The matter is REMANDED for the following action:

The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his lumbar spine disorder. The record, to include a copy of this Remand, must be made available to the examiner, and indicated evaluations, studies, and tests should be conducted.  Thereafter, the examiner should address the following inquiries:

(A)  Identify all current lumbar spine disorders.

(B)  For each identified lumbar spine disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that such disorder had its onset, or is otherwise related to, his military service, to include his documented complaints of right rib pain and right back pain during inhalation in January 1987 and/or his reports of carrying heavy backpacks and weapons during 20-mile marches.

(C)  If arthritis of the lumbar spine is diagnosed, offer an opinion as to whether such manifested within one year of the Veteran s separation from service in January 1989, i.e., by January 1990 and, if so, describe the manifestations.

In offering such opinions, the examiner should consider the Veteran s reports regarding the onset and continuity of his back pain.  A rationale for any opinion offered should be provided.

A. JAEGER

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	Tiffany Alston, Associate Counsel