judge_norm: JOHN J CROWLEY

benefit: tdiu

text: Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depressive disorder, is remanded. Entitlement to total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to eligibility for Dependents’ Educational Assistance is remanded.

text:
��Citation Nr: 18112000

Decision Date: 06/18/18	Archive Date: 06/18/18

DOCKET NO. 14-23 953

DATE:	June 18, 2018

ORDER

Entitlement to a disability evaluation, in excess of 10 percent, for a service-connected lipoma, status post excision, is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depressive disorder, is remanded.

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

Entitlement to eligibility for Dependents  Educational Assistance is remanded.

FINDING OF FACT

1. The resulting scar from the Veteran s abdominal lipoma removal presents as superficial and painful, but not unstable.

2. The Veteran does not have more than two superficial and painful scars as a result of his abdominal lipoma removal.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent for benign growths of the skin, status post excision, are not met.  38 U.S.C. �� 1155, 5107 (2012); 38 C.F.R. �� 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.118, Diagnostic Codes 7804, 7819 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active duty service with the United States Army from June 1969 to March 1972.  The Veteran is a Vietnam Veteran who served in the Republic of Vietnam.

This matter is before the Board of Veterans  Appeals (Board) on appeal from September 2011 and August 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico.

Jurisdiction of the file is now with the RO in San Juan, Puerto Rico.

In a May 2014 rating decision, the RO granted service connection for the Veteran s excised abdominal lipoma, assigning a 10 percent rating effective October 12, 2010.  Because the RO did not assign the maximum disability rating possible, the appeal for higher disability evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran s claim for PTSD has been expanded as reflected on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed).

With respect to a total disability rating based on individual unemployability (TDIU), the Veteran has appealed for higher schedular ratings for his excised abdominal scar, and he has alleged interference with his employment due to his service-connected disabilities in communication with the VA.  See Statement in Support of Claim, dated June 2014.  Thus, a new claim for TDIU exists.  Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted).

In this case, the Veteran has raised the question of unemployability.  The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim.

This case was previously before the Board in July 2016.  In July 2016, the case was remanded to schedule the Veteran for a hearing.  The case has been returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In September 2016, the Board notified the Veteran that he had been placed on a list of persons awaiting a videoconference hearing before the Board.  In October 2016, the Veteran provided notice that he wished to withdraw his request for a hearing, requesting that his case be forwarded to the Board without delay.  Based upon the foregoing, the Board finds that the directives of the prior remand have been substantially complied with.  See D Aries v. Peake, 22 Vet App. 97 (2008) (holding that only substantial, and not strict, compliance with terms of a Board remand is required pursuant to Stegall, 11 Vet. App. at 268).

The Board notes that there were additional medical records received after the last statement of the case, in May 2014.  However, the evidence received was not relevant to the claim of entitlement to an increased disability rating for the Veteran s excised abdominal lipoma. Thus, a waiver is not necessary, and this matter is properly before the Board.

The Board has reviewed the electronic records maintained in the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

The issues of service connection for an acquired psychological disorder, to include PTSD and depressive disorder, TDIU, and entitlement to Dependents  Educational Assistance, currently on appeal, are REMANDED to the AOJ.  VA will notify the Veteran if further action is required.

VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits.  38 U.S.C. �� 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (a) (2017).

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that  the Board s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board. ); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Entitlement to a disability evaluation, in excess of 10 percent, for a service-connected lipoma, status post excision

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. � 1155 (2012); 38 C.F.R. � 4.1 (2017).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7 (2017).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran.  38 C.F.R. � 4.3 (2017).

The Veteran has challenged the initial disability rating assigned for his service-connected disability by seeking appellate review.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating.  Fenderson, 12 Vet. App. at 126.

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. � 4.14 (2017).  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The Veteran asserts entitlement to an increased evaluation for his excised abdominal lipoma.

Excised, benign, skin neoplasms are governed Diagnostic Code 7819.  Under Diagnostic Code 7819, the disability is to be rated as scars (Diagnostic Codes 7801-7805) or impairment of function.  38 C.F.R. � 4.118, Diagnostic Code 7819 (2017).

A November 2011 VA examination found that the Veteran s resulting scar was located on the right lower quadrant of the abdomen.  The examination found that the scar was painful, but no evidence suggests that the scar is unstable.  As such, the appropriate Diagnostic Code by which to rate the Veteran s resulting scar is Diagnostic Code 7804, which governs scars that are unstable or painful.  38 C.F.R. � 4.118, Diagnostic Code 7804 (2017).

Under Diagnostic Code 7804, a 10 percent disability rating is warranted with one or two scars that are unstable or painful.  Id.

A 20 percent rating is warranted with three or four scars that are unstable or painful.  Id.

A maximum disability rating of 30 percent is warranted with five or more scars that are unstable or painful.  Id.

The Veteran claims entitlement to a disability rating in excess of 10 percent for his service-connected excised abdominal lipoma.  However, as outlined below, the evidence is against awarding a higher disability rating.

In November 2011, the Veteran received a VA examination to address the severity of his scars.  The examiner performed an in-person examination and assessment of the size and characteristics of the Veteran s scar.  The scar was found to be superficial and it was located in the right lower quadrant of the abdomen.  The measurements were 0.5 centimeters wide by 4.5 centimeters long.  The scar was painful.  However, there were no signs of skin breakdown, no inflammation, no edema, no keloid formation, and no other disabling effects.

The record is silent for treatment for scar instability or disabling effects resulting from his abdominal scar.

Based upon the evidence as outlined above, the Board finds that the Veteran s disability rating more closely approximates a 10 percent disability rating than a 20 percent disability rating.  Id.  The Veteran presented with a single painful scar.  There is no evidence that the scar is unstable.  There is no evidence that the scar demonstrates inflammation or edema.   The scar did not demonstrate disabling effects.  There is no evidence that the scars, related to the Veteran s service-connected abdominal lipoma, number in excess of one, and at least three painful or unstable scars are required for a 20 percent disability rating.

Importantly, this finding does not suggest that the Veteran does not have a problem with this disability.  The only question is the degree of the problem based on the standards above.

The Board has considered alternative Diagnostic Codes and finds that there is no alternative Diagnostic Code by which the Veteran could obtain a higher disability rating.  See 38 C.F.R. � 4.118, Diagnostic Codes 7801, 7802, 7805 (2017).  The evidence does not demonstrate that the Veteran s residual scar is deep, as required by Diagnostic Code 7801.  There is no evidence of disabling effects caused by the Veteran s scar, as required by Diagnostic Code 7805.  While the Veteran s scar is superficial, there is no evidence that it is nonlinear, and he is already in receipt of a 10 percent disability rating, the maximum disability rating afforded under Diagnostic Code 7802.  As such, there is no alternative Diagnostic Code by which the Veteran could obtain a disability rating in excess of 10 percent.

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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).

For the above reasons, the Board finds that a preponderance of the evidence is against the appeal for a higher disability rating for the service connected lipoma, status post excision, and the appeal must be denied.

Because a preponderance of the evidence is against the appeal, the benefit of the doubt doctrine does not apply.  See 38 U.S.C. � 5107 (2012); 38 C.F.R. �� 4.3, 4.7 (2017).

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), anxiety, and depressive disorder is remanded.

The Veteran claims service connection for an acquired psychological disability, to include PTSD, anxiety, and depressive disorder.  Although the Board sincerely regrets the delay that this may cause, further development is required prior to adjudicating this claim.

The Veteran received two psychological VA examinations, one in March 2011 and one in April 2014.

In March 2011, the Veteran received a PTSD specific VA examination.  His problem list included symptoms of depression and anxiety.  His diagnostic impression included depressive disorder and PTSD symptomatology by history.  His symptoms included insomnia, nightmares concerning former combat experiences, conflict with family, and economic problems.  He reported suicidal thoughts.  However, the examiner found that the Veteran s symptoms did not fulfill the diagnostic criteria for PTSD.  The Veteran reported that, even as a cook, he was required to perform guard duties and, at least twice, they were under enemy attack.  The examiner noted that the Veteran was seen for anxiety at VA mental health in 1978 and 1979.

The examiner opined that it was less likely as not that the Veteran s PTSD was due to service.  She noted that the Veteran had no diagnosis of PTSD.  While the Veteran was seen for anxiety and depression, the examiner indicated that this was due to situations not related to his military experiences.

In April 2014, the VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD pursuant to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5).  However, the examiner found that the Veteran had a diagnosis of anxiety disorder.  The Veteran reported to the examiner that he had no behavioral or legal difficulties prior to entering the service.  The examiner stated that the Veteran s claimed condition was less likely as not caused by service.  The examiner supported her opinion by stating that his anxiety reaction was short lived and he was able to have a stable family and job after his first divorce, despite being forced to separate from work after an injury in 2008.

The Board finds that neither of these examinations are adequate for the purposes of adjudicating these claims.

As an initial matter, both examinations were PTSD specific.  Yet, all associated psychological conditions should be examined and considered for service connection.  See Clemons, 23 Vet. App. at 1.  While both examiners addressed the Veteran s anxiety, neither addressed causation of all psychological disabilities, to the proper legal standard, with a fully reasoned opinion, merely affording conclusory or descriptive statements.  Stefl v. Nicholson, 21 Vet. App. 120 (2007).  Finally, neither VA examination fully addressed the Veteran s history of treatment for PTSD.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); RCS Client Information, dated April 2010 ; VA Treatment Records, dated July 2014.

The Board notes that the Veteran s representative submitted a Disability Benefits Questionnaire, from a private provider, on behalf of the Veteran.  See Disability Benefits Questionnaire, dated August 2017 ; Statement in Support of Claim, dated October 2017.  However, this Disability Benefits Questionnaire is also insufficient to adjudicate the claim, as it does not address the causation of the Veteran s psychological disability.

As the evidence is insufficient to adjudicate the claim for a psychological disability, this claim must be remanded to obtain a new psychological VA examination, to address both PTSD and non-PTSD psychological claims.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303 (2007).

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

The Board finds that the claim for service connection for an acquired psychiatric disability and the claim of entitlement to TDIU are inextricably intertwined.  See 38 C.F.R. �� 3.340, 3.341, 4.16(a) (2017); see also Rating Decision, dated September 2011.  The claims of entitlement to service connection for an acquired psychiatric disability and TDIU are  intertwined  because a decision on the acquired psychiatric disability claim will impact the claim for TDIU.  Consequently, the claim of entitlement to service connection for an acquired psychiatric disability and the claim of entitlement to TDIU must be remanded for contemporaneous adjudication.

3. Entitlement to eligibility for Dependents  Educational Assistance is remanded.

For a child, spouse, or surviving spouse of a Veteran to have basic eligibility under 38 C.F.R. � 3.807, the Veteran must, if still living, have a permanent total service-connected disability.  38 C.F.R. � 3.807 (2017).  At this time, the Veteran does not have a permanent total service-connected disability.  See Rating Decision, dated August 2014.

The Board finds that the claim for service connection for an acquired psychiatric disability and the claim of entitlement to Dependents  Educational Assistance are inextricably intertwined.  See 38 C.F.R. � 3.807 (2017); see also Rating Decision, dated September 2011.  The claims of entitlement to service connection for an acquired psychiatric disability and Dependents  Educational Assistance are  intertwined  because a decision on the acquired psychiatric disability claim will impact the claim for Dependents  Educational Assistance.  Consequently, the claim of entitlement to service connection for an acquired psychiatric disability and the claim of entitlement to Dependents  Educational Assistance must be remanded for contemporaneous adjudication.

The matters are REMANDED for the following action:

1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and private treatment records, with all necessary assistance from the Veteran.

All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

If possible, the Veteran should submit these records himself.

2. Schedule the Veteran for an examination to determine the nature and etiology of any currently acquired psychiatric disability.  This is to include posttraumatic stress disorder (PTSD) if it is found to be present.  The claims file must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report.  A complete history should be elicited directly from the Veteran.  Any tests and studies deemed necessary by the examiner should be conducted.  All findings should be reported in detail.  An explanation for each opinion shall be provided.

(a.) The examiner must provide diagnoses of all current acquired psychiatric disabilities and any diagnosed psychiatric disabilities during the appeal period.

(b.) If the Veteran is currently diagnosed with PTSD, the examiner should specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that that PTSD manifested as a result of active military service.  The Board notes that the Veteran served in Vietnam    thus, fear of hostile military or terrorist activity is conceded. A confirmed stressor is not required in such situations.  See 38 C.F.R. � 3.304(f)(3).

(c.) The examiner should also specifically opine as to whether it is at least as likely as not (a 50 percent probability or more) that any other diagnosed psychiatric disability was related to the claimed in-service incident(s) or is otherwise attributable to service.

It should be noted that the Veteran is competent to attest to observable symptomatology.  The examiner s attention is invited to the Veteran s statements concerning the onset of his claimed disability.

The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran s reports of symptoms and history is inadequate.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).  Jones v. Shinseki, 23 Vet. App. 382 (2010).

The examiner is reminded that the term  as likely as not  does not mean  within the realm of medical possibility,  but rather that the evidence of record is evenly divided that, in the examiner s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

3. After the completion of the Veteran s psychological VA examination, adjudicate the issues of Dependents  Education Assistance.

4. After the completion of the Veteran s psychological VA examination, adjudicate the issue of TDIU.

JOHN J. CROWLEY

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	R. E. Trotter, Associate Counsel


series: legacy

judge_norm: DONNIE R HACHEY

judge_role: Veterans Law Judge

disposition: remanded

condition: ptsd

text:
��Citation Nr: 18113000

Decision Date: 06/21/18	Archive Date: 06/20/18

DOCKET NO. 15-16 625

DATE:	June 21, 2018

REMANDED

Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

In March 2011, the Veteran perfected appeals as to entitlement to service connection for bilateral hearing loss and tinnitus, as well as service connection for PTSD.  In a December 2012 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for PTSD.  In a December 2012 statement, the Veteran stated that he was satisfied with the December 2012 rating decision and withdrew all appeals.  Accordingly, the claims for entitlement to service connection for bilateral hearing loss and tinnitus are not currently before the Board.  38 C.F.R. � 20.204 (2017).

In a May 2014 rating decision, the AOJ, in pertinent part, denied entitlement to sleep apnea.  In June 2014, the AOJ received the Veteran s notice of disagreement with the denial of service connection for sleep apnea.  In a November 2015 statement of the case, the AOJ denied entitlement to service connection for sleep apnea.  A substantive appeal has not been received in response to the November 2015 statement of the case.  Accordingly, the Board finds the Veteran did not perfect an appeal as to the issue of entitlement to service connection for sleep apnea and thus, that issue is not currently before the Board.  38 C.F.R. �� 20.200, 20.202, 20.302 (2017).

Entitlement to an initial disability rating in excess of 50 percent for PTSD is remanded.

On the March 2015 VA Form 9, the Veteran reported attending ongoing readjustment counseling at the Vet Center in Secaucus from 2009 to the present.  See also September 2016 VA Forms 21-4142 and 21-4142a; October 2013 VA Form 21-4142; July 2012 VA Form 21-4142; March 2011 VA Form 21-4142.  Currently only Secaucus Vet Center records dated in October 2009 are associated with the evidentiary record.  The Veteran also reported that he sees psychiatrists at the VA outpatient clinic in Jersey City, and that the psychiatrists believe his PTSD has increased in severity.  Currently mental health treatment records from the East Orange VA Medical Center, which includes the Jersey City Community Based Outpatient Clinic, dated up to January 2014 are associated with the evidentiary record.  A remand is required for VA to obtain the outstanding Vet Center and updated VA treatment records.  Also, because the Veteran reported that his mental health providers have suggested a worsening of his PTSD symptoms, a new examination is warranted to assess the current severity of the Veteran s PTSD.

The matter is REMANDED for the following action:

1. Obtain the Veteran s Vet Center records from October 2009 to the present.

2. Obtain all other relevant VA treatment records for the period from January 2014 to the present.

3. After the above development is completed, schedule the Veteran for an examination to assess the current severity of his PTSD.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran s service connected PTSD.  The examiner should report all signs and symptoms necessary for rating the Veteran s PTSD under the rating criteria.

4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	S. Delhauer, Associate Counsel


judge_norm: VICTORIA MOSHIASHWILI

disposition: denied

condition: back

text:
��Citation Nr: 18114000

Decision Date: 06/26/18	Archive Date: 06/25/18

DOCKET NO. 14-29 056A

DATE:	June 26, 2018

ORDER

Entitlement to service connection for an acquired psychological disorder (to include insomnia, posttraumatic stress disorder (PTSD), anxiety, depression, and bipolar II disorder) is denied.

REMANDED

Entitlement to an increased rating in excess of 20 percent prior to November 16, 2016, and in excess of 10 percent thereafter, for lumbar spine degenerative disc disease with disc bulge (lumbar spine disability) is remanded.

FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has an acquired psychological disorder.

CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychological disorder have not been met. 38 U.S.C. �� 1110, 1131, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.310 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from October 1982 to August 2005.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA).

In a June 2016 written statement, the Veteran noted he did not want a Board hearing. Thus, the Board finds that it may proceed with adjudication.

Throughout the appeal period, the Agency of Original Jurisdiction (AOJ) adjudicated several separate claims of entitlement to service connection for various acquired psychological disorders. To afford the Veteran the broadest and most sympathetic review, the Board has merged those issues together and will consider them all under the same analysis.

1. Entitlement to service connection for an acquired psychological disorder.

Duties to Notify and Assist

The Veteran, through his representative, requested that the Board remand this issue for a VA examination to determine whether the Veteran s psychological disorder is secondary to his service-connected irritable bowel syndrome (IBS) and lumbar spine disability. See May 2018 informal hearing presentation. The Board finds that it may proceed with adjudication because the Board is finding that the Veteran does not have a diagnosed psychological disorder and, therefore, the question of secondary service connection has become moot. Additionally, although the claim is being denied on the basis that there is no current disability, the March 2016 VA examiner considered and discussed what impact, if any, the Veteran s IBS and lumbar spine disability might have on his mental condition (see March 2016 VA examination) and, therefore, this information has been available to the Board during its review.

Legal Criteria

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. � 1131; 38 C.F.R. � 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. � 3.303(d).

In the absence of a current diagnosed disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007).

Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. � 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Analysis

The Veteran claims that he never had a mental condition until he was in the military, see March 2013 notice of disagreement (NOD), and that he currently has a mental disorder that may be related to his service-connected IBS and lumbar spine disability. See August 2014 statement.

After considering the evidence, including the Veteran s VA treatment records and lay statements by the Veteran and his wife, the Board finds that the preponderance of the evidence indicates that the Veteran does not have a psychological disorder.

In support of this finding, the Board assigns significant probative weight to the consistent and detailed reports of four VA examinations (by three different VA examiners) who all concluded that the Veteran was malingering and that a diagnosis could not be rendered. See January 2013, March 2016, November 2016, and January 2017 VA examinations. Specifically, these examiners opined that objective testing was rendered invalid due to inconsistent reporting by the Veteran or extreme over-reporting. See, e.g., March 2016 VA examination. The January 2013 VA examiner explained that, when there is significant exaggeration or feigning of symptoms, it is impossible to determine what symptoms a patient is truly experiencing and what symptoms they are feigning. See January 2013 VA examination.

As for the psychological diagnoses reflected in VA treatment records, the January 2013, March 2016, and November 2016 VA examiners considered and explained that these diagnoses appeared to have been based predominantly on the Veteran s subjectively reported symptoms, with no objective assessment of response style, and that these diagnoses were, therefore, inapplicable. See, e.g., January 2013 VA examination. The November 2016 VA examiner further explained that empirical research showed that the diagnostic judgments of mental health treatment providers could be unreliable, and there is no evidence in published empirical literature that the diagnostic judgments of mental health treatment providers become more valid with more exposure to a particular individual. In other words, the fact that the Veteran had received treatment for a given condition over a significant period did not, in itself, bestow additional validity to the diagnoses noted in the VA treatment records. See November 2016 VA examination. Because of the VA examiners  well-explained opinions regarding the potential inadequacy of the diagnoses in VA treatment records, in addition to the examiners  consistent and well-supported conclusions that the Veteran did not have an acquired psychological condition, the Board cannot assign significant probative weight to psychological diagnoses noted in the VA treatment records.

The March 2016 VA examiner noted that, in spite of invalid testing and negative clinic screening, the Veteran consistently reported the same symptoms since 2012 and continued to take medication for depression and anxiety. As a result, the VA examiner reported  rule out unspecified anxiety  and  rule out unspecified depression.  See March 2016 VA examination.  [The Board notes that the phrase  rule out . . . is typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained.  Alvin E. House, DSM IV Diagnosis in the Schools 33 (2002). The phrase  rule out  is  a reminder or instruction to continue seeking the information which would allow a diagnosis to be conclusively identified or eliminated from consideration (for the present).  Id.]  However, the Board cannot assign significant probative weight to these  rule out  notations because the same examiner noted that objective testing reflected that the Veteran was malingering.

The Veteran has reported that he never experienced psychological problems before service and his spouse has reported that he was a different person physically and mentally after returning home from service, demonstrating symptoms such as nightmares and withdrawal. See February 2015 statement.  These statements are directly contradicted by the consistent medical examination reports and opinions by three different examiners, as noted above, and these inconsistencies compel the Board to conclude that the lay statements submitted by the Veteran and his wife are not credible.  See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record).  Therefore, the Board cannot assign the lay statements significant probative weight.  See Caluza, 7 Vet. App. at 510-11.

As to a potential diagnosis of insomnia, the Board also attaches significant probative weight to the March 2016 and January 2017 VA examination reports concluding that the Veteran did not have a primary diagnosis of insomnia. Specifically, the January 2017 VA examiner noted that insomnia is a diagnosis of exclusion and only diagnosed when sleep disturbance is not adequately explained by a medical or mental health condition. While comorbidity could occur, the examiner explained, symptoms of insomnia did not explain the Veteran s broken sleep and the examiner opined that it was clear that the reported sleep disturbances were a clinical indicator of the Veteran s back pain and did not support a diagnosis of insomnia. See January 2017 VA examination. This opinion is uncontradicted by the medical evidence of record.

Due to the reasons stated above, the Board finds that the consistent and detailed VA opinions significantly outweigh the Veteran s VA treatment records and the lay statements of record. Because the preponderance of the evidence does not reflect that the Veteran has a current psychological disorder, service connection is not warranted.

REASONS FOR REMAND

1. Entitlement to an increased rating in excess of 20 percent disabling prior to November 16, 2016, and in excess of 10 percent thereafter, for a lumbar spine disability is remanded.

VA examinations must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, previous VA spine examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Additionally, the Veteran has stated that the most recent VA examination of record did not consider his frequent flare-ups. See March 2017 statement; Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, remand for a new VA spine examination is necessary.

The matter is REMANDED for the following action:

1. Obtain the Veteran s VA treatment records for the period from February 2017 to the present.

2. AFTER the above development has been completed, arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine disability. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed.

Range of motion studies should include active and passive motion and pain on weight-bearing and non-weight-bearing. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors (if the Veteran is not experiencing a flare up at the time of the examination, the examiner must ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion based on that information).

If feasible, the examiner MUST assess the additional functional impairment during flare-ups in terms of the degrees of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information (and what that information would be), or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	J. Sandler, Associate Counsel


judge_norm: M E LARKIN

disposition: dismissed

condition: psychiatric

condition: knee

text:
��Citation Nr: 18115000

Decision Date: 06/28/18	Archive Date: 06/28/18

DOCKET NO. 15-12 677

DATE:	June 28, 2018

ORDER

Entitlement to service connection for sinusitis is dismissed.

Entitlement to service connection for major depressive disorder and generalized anxiety disorder is granted.

REMANDED

Entitlement to service connection for right and left knee disabilities is remanded.

FINDINGS OF FACT

1. During the Veteran s December 2016 hearing, he withdrew his appeal of the issue of entitlement to service connection for sinusitis.

2. The competent, credible and probative evidence has shown that the Veteran s major depressive and generalized anxiety disorders are related to his service.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for entitlement to service connection for sinusitis are met. 38 U.S.C. � 7105(b)(2), (d)(5); 38 C.F.R. � 20.204.

2. The criteria for service connection for major depressive disorder and generalized anxiety disorder have been met. 38 U.S.C. �� 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 2008 to January 2012.

1. Entitlement to service connection for sinusitis

At the Veteran s December 2016 hearing, prior to the promulgation of a decision on the appeal, the Veteran stated that he wanted to withdraw his appeal on the issue of entitlement to service connection for sinusitis.

Under 38 U.S.C. � 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. � 20.204. With regard to the issues withdrawn by the Veteran, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed.

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

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

The Veteran s service personnel records show he was deployed to Afghanistan.  His service treatment records include treatment for adjustment disorder.

The Veteran was given a VA examination in July 2013 and diagnosed with depression NOS. The examiner stated that the Veteran was treated for adjustment disorder while in service, but related that treatment to the breakup of the Veteran s marriage during the time.  The examiner opined that the currently diagnosed depression was not related to service, but did not provide a rationale.

The Veteran testified at a hearing before the undersigned in December 2016. He testified that he had sleep and depression issues while in service and sought treatment at the time. The Veteran also testified that VA providers told him that they believe his depression is connected to his service because of his service-connected migraine and back disabilities.

In the Veteran s March 2017 VA medical treatment notes, he asked his mental health provider if he had PTSD. After the provider shared their diagnostic impression of major depressive disorder with anxiety, the Veteran asked to be referred for a second opinion pertaining to whether he had PTSD. In an April 2017 VA medical treatment note, the Veteran s provided documented that the Veteran s symptoms may be linked to a trauma-related event the Veteran experienced, although, the event itself is not documented.

In May 2017, the Veteran submitted a statement from his friend that deployed with the Veteran to Afghanistan. The Veteran s friend stated that while on deployment, the Veteran became withdrawn. He noticed that it occurred right around the time one of their close comrades had been injured in an accident. He became more and more distant with his peers.

In August 2017, the Veteran was given a VA examination for PTSD. In addition to the Veteran s PTSD diagnosis, he was also diagnosed with major depressive disorder, recurrent, generalized anxiety and alcohol use disorder. The examiner noted the Veteran s report that symptoms of the major depressive and anxiety disorders began during service and have continued since.  The examiner opined that the Veteran s diagnosis of alcohol use disorder, mild is secondary to or aggravated by his PTSD, but did not provide an explicit opinion on the etiology of the major depressive or anxiety disorders.

In an August 2017 rating decision, the RO granted service connection and assigned a 70 percent evaluation for PTSD with alcohol use disorder, effective from March 13, 2017.

After a review of the evidence, the Board finds that service connection for an acquired psychiatric disorder, other than PTSD, specifically major depressive disorder and generalized anxiety disorder, is warranted. The Veteran has been consistently pursuing his claim since January 2012. While the August 2017 examiner did not include an explicit etiology opinion, the examiner did note that the Veteran began experiencing symptoms of major depression and anxiety during service and that the symptoms had continued since that time.  The Board attaches little probative value to the July 2013 VA examination because there was no rationale provided for the negative opinion.

In summary, the competent and credible evidence shows service connection for major depressive disorder and generalized anxiety disorder is granted.

REASONS FOR REMAND

Entitlement to service connection for right and left knee disabilities is remanded.

The Veteran contends that his right and left knee disability was incurred during his active service.

The Veteran testified at his December 2016 Board hearing that he had both back and knee pain while in service. He further testified that he sought treatment for his knees and back, but that Army medical staff wanted to treat him for his back disability first before starting treatment for his knees. The Veteran stated that when his knees were being treated he was separating from service. The Veteran also stated that he was on a restricted fitness profile towards the end of his service. Service treatment records (STRs) from July 2011 reference that the Veteran was seen a week earlier for back pain and put on profile, but no other records are in his file. Similarly, the Veteran s STRs have entrance examination reports, but there are no separation examination reports. The Veteran s military personnel record also contains a June 2015 Army Discharge Review Board decision report that references an August 2011, Report of Mental Status Evaluation noting that the Veteran s record has documentary evidence that he had ongoing mental health issues while on active duty. These statements and references to the Veteran s mental health records indicate that the Veteran s file is missing complete service treatment and personnel records from his military service. On remand, the RO should take all reasonable action to ensure the Veteran s service treatment records and military personnel records are obtained and associated with the file. If such records are unavailable, a formal determination as to the unavailability of the records pursuant to 38 C.F.R. � 3.159 (c) must be made. The Veteran should also be scheduled for an examination to assist in determining whether the veteran has a right or left knee disability that is related to service.

The matter is REMANDED for the following action:

1. Contact the National Personnel Records Center, Records Management Center and any other appropriate agency to obtain the Veteran s personnel and service treatment records. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile.

If the service treatment records are missing or are otherwise unavailable, this fact shall also be documented and a formal finding of unavailability shall be made with notice to the Veteran and his representative. The notification letter must inform the Veteran of the following: the service medical treatment records could not be obtained, a brief explanation of the efforts made to obtain the records, request that he furnish any records in his possession that VA could not obtain, and/or identify the possible location of the records, identify the possible alternative sources of service records, and describe the action VA will take on the claim if the evidence is not furnished or identified within 10 days from the date of the notice. 38 C.F.R. � 3.159(e).

2. After completion of the foregoing, schedule the Veteran for a VA examination to obtain a medical opinion to the nature and etiology of any right and left knee disabilities. Copies of all pertinent records should be made available to the examiner for review.

Based on the examination and review of the record, the examiner is to address the following questions:

(a) Identify all currently diagnosed knee conditions.

(b) Is it at least as likely as not (a 50 percent or greater probability) that any currently diagnosed, right and/or left knee condition had its onset in or is otherwise related to the Veteran s active duty service?

(c) If the examiner finds that any diagnosed knee condition is not related to service, is it is at least as likely as not that any currently diagnosed knee disability is caused or aggravated to a back disability.

The examiner is informed that aggravation here is defined as any increase in disability.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation.

The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion.

The examiner should discuss and address the detailed history taken from the Veteran in the opinion. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner should so state, with a complete explanation in support of that finding.

(Continued on the next page)

The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner determines that the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided.

M.E. Larkin

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. G. Perkins, Associate Counsel


judge_norm: D JOHNSON

text:
��Citation Nr: 18116000

Decision Date: 07/03/18	Archive Date: 07/03/18

DOCKET NO. 13-21 632

DATE:	July 3, 2018

ORDER

Entitlement to service connection for seizure disorder is denied.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that a seizure disorder began during active service, or is otherwise related to an in-service injury, event, or disease, to include ionizing radiation exposure.

2. A malignant tumor did not have onset within a year of service discharge.

CONCLUSION OF LAW

The criteria for service connection for seizure disorder are not met.  38 U.S.C. �� 1110, 1131, 5107(b); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.311.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from May 1982 to August 1982, June 1983 to August 1983, and April 1985 to October 1993.  This matter comes before the Board of Veteran s Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2014.  The Board remanded the appeal in June 2015 and August 2017 for further development which has been completed.

In June 2018, the Veteran requested a second hearing before the Board without further explanation.  Neither the Veteran nor his representative have alleged any deficiencies regarding the prior hearing.  The Veteran s representative has had an opportunity to file arguments in this matter, and did so.  Neither the Veteran nor his representative has provided reason or good cause as to why a second hearing should be provided.  Accordingly, a second hearing is not warranted.   Cf. Cook v. Snyder, 28 Vet. App. 330 (2017).

The Board notes that a claim for entitlement to an increased rating for migraines has been perfected, but not yet certified, to the Board thereby indicating that the actions of the originating agency may not be fully completed.  As it appears this matter is not currently ripe for adjudication, it will not be addressed herein.

Entitlement to service connection for seizure disorder

The Veteran asserts that he was exposed to ionizing and non-ionizing radiation in service, which led to the development of a brain tumor, which in turn caused his current seizure disorder.  He further contends that headaches, sinusitis, dizziness and other symptoms in service represent the onset of a tumor in service.  In the alternative, the Veteran asserts his seizure disorder is secondary to his service-connected migraine disorder.  See June 2015 electronic mail, April 2013 correspondence, and March 2017 correspondence.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. � 1131; 38 C.F.R. � 3.303 (2017).  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

Certain chronic diseases, which are listed in 38 C.F.R. � 3.309 (a), such as malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 C.F.R. �� 3.307, 3.309 (2017).

VA regulations provide additional bases for service connection for Veterans who have been exposed to ionizing radiation.

The first basis is a presumptive basis for diseases specific to  radiation exposed veterans  under 38 U.S.C. � 1112 (c); 38 C.F.R. � 3.309 (d)(2017). A  radiation-exposed veteran  is a Veteran who participated in a  radiation-risk activity,  as defined in 38 C.F.R. � 3.309 (d)(3)(i)-(ii) (2017).

Service connection for a radiogenic disease can also be pursued based on exposure to ionizing radiation as provided in 38 C.F.R. � 3.311 (2016).  Section 3.311 does not provide presumptive service connection for  radiogenic diseases  but provides special developmental procedures to help a Veteran or his survivors prove his claim on a direct basis.  See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997).  Section 3.311(a) calls for the development of a radiation dose assessment where it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. � 3.307 or 38 C.F.R. � 3.309, and it is contended that the disease is a result of exposure to ionizing radiation in service. Tumors of the brain are listed as radiogenic diseases.  Further, the claim is referred to the Under Secretary for Benefits for consideration before adjudication when it is determined that (i) a Veteran was exposed to ionizing radiation because of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki during a specific period, or other activities as claimed; (ii) the Veteran subsequently developed a radiogenic disease; and (iii) the radiogenic disease became manifest within the period specified. 38 C.F.R. � 3.311 (b)(1), (5) (2016). Notably, if any of the foregoing three requirements are not met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. 38 C.F.R. � 3.311 (b)(1) (2017).

Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. � 3.310.

The preponderance of evidence in this case weighs against the Veteran s claim.

At the outset, there is no evidence or assertion that a malignant brain tumor was noted in service or within the one-year post-service presumptive period for malignant tumors.

As previously established in the Veteran s claim for service connection for memory loss, the Veteran does not qualify as a  radiation-exposed veteran.   There is no evidence that the Veteran participated in a  radiation-risk activity  as defined in 38 C.F.R. � 3.309 (d)(3)(ii).  The competent evidence also reflects that the Veteran was not otherwise exposed to ionizing radiation in service. Service personnel records are silent for ionizing radiation exposure.  The Naval Dosimetry Center found no evidence that the Veteran had occupational exposure to ionizing radiation in service.  In August 2016, the Naval Dosimetry Center authored a letter regarding the Veteran s radiation exposure and noted that there was no report of occupational exposure to ionizing radiation pertaining to this Veteran.  Exposure to radiation and radiation dosage are both complex determinations that cannot be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

The question for the Board then, is whether the Veteran s current seizure disorder began during service or is at least as likely as not related to an in-service injury, event, or disease.

After reviewing the record, there is no other basis upon which service connection for a seizure disorder is warranted.  The preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a), (d).

Service treatment records are silent for diagnosis or treatment of seizure disorder.  Although service treatment records confirm symptoms including headaches, dizziness, and sinus symptoms, they were assessed as sinus congestion, possible sinusitis or pneumonia, and probably viral syndrome.  See November 1986, May 1982, and September 1985 service treatment records.

VA treatment records reflect a January 2005 diagnosis of new onset of seizure disorder.  At that time, the Veteran reported no prior seizures.  VA treatment records indicate that the Veteran s seizure disorder is typically nocturnal and characterized by urinary incontinence, hallucination, disorientation, tongue biting, stiffness, jerking and loss of consciousness.  See September 2013 VA treatment records.

Imagining was done in relation to the diagnosis of seizure disorder.  In February 2005 VA treatment records, imaging showed an intraventricular mass in the Veteran s brain with an initial diagnosis of brain tumor.  In November 2009 VA treatment records, the clinician noted May 2009 imaging which showed a basal forebrain tumor.  The clinician indicated that this mass was stable since the initial diagnosis and he strongly suspected that the mass is the source of the Veteran s seizure disorder.

In March 2009 VA treatment records, the Veteran reported that he may had have seizures prior to the 2005 diagnosis.  Specifically, the Veteran reported bed wetting and biting his tongue in his sleep, which had onset as early as 1995 or 1997 with similar events thereafter.  The Veteran indicated that he originally believed his daughter was responsible for the bed wetting in 1997 or 1998.  The Veteran also related that symptoms of seizure disorder go back to 1993 when he passed out without warning or recall.  A separate March 2009 VA treatment record noted that the Veteran s seizure disorder is probably related to a left basal forebrain tumor of undefined histology.

The evidence also includes an October 2010 statement of the Veteran s former spouse who reported that early in their marriage, she observed the Veteran wetting the bed.  They were married from June 1995 to May 2005.  In April 2011, the Veteran mother stated that he suffered seizures after his involvement in the Persian Gulf War.  In July 2015, the Veteran s mother stated that the Veteran was treated for seizure disorder in service at military hospitals and that the Veteran had incidents of bed wetting attributable to the seizure disorder as early at 1999.

In May 2013, the Veteran underwent an examination in relation to a private disability benefit questionnaire (DBQ).  The clinician reviewed VA medical records and noted a diagnosis of tonic clonic seizures and benign neoplasm of the brain.  The clinician noted that witnessed symptoms include stiffness, shaking, biting tongue, and urinary incontinence.  The clinician noted the first seizure in January 2005 and opined that the Veteran s seizure disorder is probably caused by a benign brain tumor.

In April 2014, the Veteran testified before the Board.  Specifically, the Veteran testified that while he was a training officer at Pensacola, he had problems with dizziness and bed wetting.  The Veteran also testified that bedwetting and dizziness began around 1990.  The Veteran detailed radiation exposure in service due to jamming signals and serving aboard a nuclear carrier.

In October 2016, the Veteran was afforded a VA examination.  The examiner, the Chief of Neurology, conducted an in-person examination, and reviewed the claims files and VA treatment records.  The examiner took note of in-service complaints of headaches and dizziness.  The examiner further noted no in-service mention of neurologic abnormality.  The examiner noted a current diagnosis of tonic clonic, or grand mal seizures.  As to the mass in the Veteran s brain, the examiner offered a differential diagnosis of dermoid, low grade astrocytoma, neural oncocytoma, ependymoma, or metastasis.  The examiner reasoned that the stable mass history and signal characteristic make it likely that the mass is a cystic mass. Accordingly, the examiner opined that is unlikely to be caused by radiation exposure.  The examiner further reasoned that the stable mass history makes it possible that mass was present or preceded service.  Ultimately, the examiner could not relate the mass to the cause of the seizure disorder due to the physical characteristics of the mass.  The examiner also concluded that the Veteran did not have a seizure in service.

Pursuant to the August 2017 Remand, VA obtained an addendum opinion from the same VA examiner in September 2017.  The examiner opined that the seizure disorder is not caused or aggravated by service-connected migraine disorder.  The examiner provided an extensive rationale in support of his opinion.  In brief part, he explained that review of medical evidence shows no causal relationship has been established between the two disorders.  As to aggravation, the examiner explained that headaches usually appear after an epileptic fit, thus suggesting that migraines aggravate seizures, not the converse.  The examiner further commented that migraines causing excessive vomiting and inducing metabolic disturbance or sleep deprivation could lower seizure threshold and trigger a seizure; however, he noted that there is no such evidence of such symptomatology in this Veteran s case.

The preponderance of the competent and probative evidence does not support onset in service.

The October 2016 and September 2017 VA opinions establish that a seizure disorder is not related to service and is not caused or aggravated by service-connected migraines. These opinions, which are were supported with clinical rationale, are highly persuasive.  The examiner, a neurologist, has the appropriate training, expertise and knowledge to evaluate seizure disorders.   There are no equally competent and probative medical opinions to the contrary.

The Veteran and his mother have asserted that the seizure disorder had onset in, or is related to, service.  While the Veteran and his mother are competent to report symptoms they observed, they are not competent to identify or diagnose a seizure disorder, nor offer an opinion as to whether it is related to service.  Such requires knowledge and training outside the scope of lay evidence.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Further, the VA examiner s opinions outweigh their lay opinions in this regard.

Furthermore, while a private clinician in May 2013 DBQ and various VA clinicians have related the Veteran s seizure disorder to the mass in his brain- none of the clinicians have conclusively related the mass to service.  Moreover, the clinicians provided no rationale to support for their opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).   Thus, these findings are not favorable in terms of causal nexus.

Finally, the Veteran asserts that his seizure disorder is secondary to obstructive sleep apnea.  He is not service-connected for obstructive sleep apnea.  Service connection for obstructive sleep apnea was denied in an unappealed rating decision issued in August 2017.  Therefore, there is no basis to establish service connection for seizures secondary to obstructive sleep apnea.  See 38 C.F.R. � 3.310.

In short, the preponderance of the competent or probative does not support a causal relationship between the Veteran s seizure disorder and service, or between his seizure disorder and service-connected migraines.  As such, the benefit of the doubt doctrine does not apply, and service connection is not warranted.  See 38 U.S.C. �5107 (2012); 38 C.F.R. �3.102 (2017); Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990).

D. JOHNSON

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	K. Vuong, Associate Counsel


judge_norm: KRISTI L GUNN

disposition: granted

condition: headache

text:
��Citation Nr: 18117000

Decision Date: 07/09/18	Archive Date: 07/09/18

DOCKET NO. 15-17 828

DATE:	July 9, 2018

ORDER

New and material evidence having been received; the claim of entitlement to service connection for migraine headaches to include as due to service-connected posttraumatic stress disorder (PTSD) is reopened.  The appeal is granted to that extent only.

FINDINGS OF FACT

1. In a February 2010 rating decision, the RO denied service connection for migraine headaches; as the Veteran did not perfect an appeal, the February 2010 rating decision became final.

2. The evidence received since the February 2010 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for migraine headaches, to include as due to service-connected PTSD.

CONCLUSIONS OF LAW

1. The February 2010 rating decision that denied service connection for migraine headaches is final.  38 U.S.C. � 7105 (2012); 38 C.F.R. � 20.1103 (2017).

2. New and material evidence has been received to reopen the claim of service connection for migraine headaches.  38 U.S.C. � 5108 (2012); 38 C.F.R. � 3.156 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2005 to March 2006.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Board notes the Veteran submitted a March 2013 notice of disagreement which the RO interpreted as the Veteran s disagreement with the effective date assigned to the Veteran s grant of service connection for PTSD.  However, upon thorough review of the record, the Board finds the Veteran has limited her appeal to the issue of service connection for migraine headaches to include as due to service-connected PTSD.

Whether new and material evidence has been received to reopen a claim of entitlement to service connection of headaches to include as due to service-connected PTSD.

I.  VA s Duties to Notify & Assist

The VCAA describes VA s duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C. �� 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2017). I n light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.

II.  New and Material Evidence

Pursuant to 38 U.S.C. � 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.  As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed.  38 U.S.C. � 7105 (c).

The exception to this rule is described under 38 U.S.C. � 5108, which provides that  if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.   Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA.  38 U.S.C. �� 5108, 7104(b); 38 C.F.R. � 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156 (a).

The Board will generally presume the credibility of the evidence in determining whether evidence is new and material.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  Anglin v. West, 203 F.3d 1343 (2000).

In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is  low.   See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

The Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for migraine headaches, to include as due to service-connected PTSD.  The claim was originally denied in a February 2010 rating decision.  The RO denied the Veteran s claim because the evidence submitted failed to show the Veteran s migraine headaches were incurred in or caused by her active service.  The Veteran was provided with notification of the February 2010 rating decision and of her procedural and appellate rights.  The Veteran did not perfect an appeal and the February 2010 rating decision which denied service connection for migraine headaches became final.  38 U.S.C. � 7105 (2012); 38 C.F.R. � 20.1103 (2017).

Subsequent to the February 2010 rating decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show a possibility that her migraine headaches were incurred or caused by her active service.  Specifically, statements received from the Veteran s fellow service-woman and former employer detailing the Veteran s complaints of migraines during and following service.  Accordingly, this evidence is sufficient to reopen the previously-denied claim of entitlement to service connection for migraine headaches.  See 38 C.F.R. � 3.156 (a).

REMANDED

Entitlement to service connection for migraine headaches, to include as due to service-connected PTSD is remanded.

REASONS FOR REMAND

Entitlement to service connection for migraine headaches, to include as due to service-connected PTSD is remanded.

The Veteran underwent a VA examination for her claim in April 2015.  The examiner noted that her opinion was based on the evidence available at that time which did not include service treatment records from the Veteran s entrance or exit from service.  The examiner opined it is less likely than not that the Veteran s claimed migraine headache is due to or caused by direct military service or secondary to PTSD.  The examiner reasoned that based on the available evidence, the Veteran does not have migraine headaches but does have chronic tension-type headaches as diagnosed by the neurologist and supported by the Veteran s symptoms and testing.  The examiner further noted the Veteran does have chronic tension-type headaches which are not due to or caused by military service which is supported by the Veterans 2006 post deployment assessment stating she did have headaches in-service but none now.  The examiner also concluded the Veteran s PTSD does not cause headaches as studies show that although there is a relationship between PTSD and headaches the relationship is not causal.  See Compensation and Pension examination dated April 6, 2015.

The Board finds this opinion is not adequate for adjudication purposes, as it is not based on the evidence in its entirety.  Of note, the examiner failed to take into account lay statements from the Veteran that have been noted throughout the record and indicate the Veteran s consistent reports of migraine headaches evidenced on her post deployment health assessment, on her application submitted in February 2006 for migraine headaches and numerous statements submitted by the Veteran throughout the appeal period.  Moreover, statements from the Veteran s father on the Veteran s complaints of headaches since service and hospital records dated September 2008 from Atlanta Memorial Hospital that note the Veteran s complaints of a severe headache were not taken into account.  Additionally, statements were received into the record after the April 2015 examination from the Veteran s fellow service-woman who recounted the Veteran s reports of headaches during service and from the Veteran s former employer who recounted the Veteran s reports of migraine headaches and the effect they had on her job performance.  Based on the foregoing, the Board finds an additional medical opinion that considers all the evidence of record in its entirety is warranted.

Additionally, efforts should be made to obtain the Veteran s complete service treatment records.  Of record currently are post deployment health assessments from January 2006 and September 2007 and sick slips submitted by the Veteran.  Thus, on remand the Veteran s complete records should be obtained.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

This matter is REMANDED for the following action:

1. Contact the NPRC or other appropriate records repository to attempt to obtain a copy of the Veteran s STRs.  The Veteran should also be invited to submit any copies of STRs in her possession.  All attempts to obtain STRs should be documented in the electronic claims file.

2. After the above has been completed, schedule the Veteran for a VA examination with a qualified examiner to determine the nature and etiology of her migraine headaches.  The electronic claims file, including a copy of this remand should be reviewed in conjunction with this examination.

The examiner is asked to opine whether:

a).  It is at least as likely as not (a 50 percent or higher probability) the Veteran s migraine headaches had its onset in or is otherwise related to the Veteran s military service?

b).  If not, is it at least as likely as not (a 50 percent or higher probability) the Veteran s migraine headaches were caused by the Veteran s service-connected PTSD?

c).  It is at least as likely as not (a 50 percent or higher probability) the Veteran s migraine headaches were aggravated by the Veteran s service-connected PTSD?

The examiner should accept as true the Veteran s reports that she experienced migraine headaches during active service.

(Continued on the next page)

Full consideration should also be afforded by the VA examiner to the Veteran s complaints as to her ongoing symptoms and manifestations relating to the foregoing.  A complete rationale should be provided for all opinions expressed.

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and her representative.  After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order.

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	K. McDuffie, Associate Counsel


judge_norm: S C KREMBS

condition: skin

text:
��Citation Nr: 18118000

Decision Date: 07/12/18	Archive Date: 07/11/18

DOCKET NO. 13-10 176

DATE:	July 12, 2018

ORDER

An initial compensable rating for the scar residuals of the Veteran's spontaneous pneumothorax is denied.

REMANDED

The issue of entitlement to an evaluation in excess of 30 percent for the residuals of the spontaneous pneumothorax is remanded.

FINDING OF FACT

Throughout the appeal period, it has not been shown that the Veteran's residual scars associated with spontaneous pneumothorax have been painful, unstable, involve an area of at least 6 square inches (39 square centimeters) or more, or result in any disabling effects.

CONCLUSION OF LAW

The criteria for an initial compensable rating for the scar residuals of the Veteran's spontaneous pneumothorax are not met.  38 U.S.C. �� 1155, 5107 (West 2014); 38 C.F.R. �� 4.1, 4.118, Diagnostic Code 7805 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Air Force from February 1974 to August 1977.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a January 2012 of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine.

In November 2016, the Board remanded this matter for additional development.  The Board also at that time referred the issue of entitlement to service connection for COPD.  To date, the issue still has still not been adjudicated by the Agency of original Jurisdiction (AOJ).  Therefore, it is again referred to the AOJ for appropriate action.  38 C.F.R. � 19.9(b).

Entitlement to an initial compensable disability rating for the scar residuals of a spontaneous pneumothorax.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2017).  The Board determines the extent to which a veteran s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C. � 1155 (West 2014); 38 C.F.R. �� 4.1, 4.10 (2017).  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.

The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App 505 (2007).

The Veteran contends that the current severity of his service-connected residual scars associated with status/post spontaneous pneumothorax warrants a compensable rating.  The preponderance of the evidence, however, is against his claim.

Scars located not on the head, face, or neck are rated under Diagnosis Codes 7801, 7802, 7804, and 7805.  Because the Veteran s residual scars associated with status/post spontaneous pneumothorax are linear, the only applicable diagnostic codes are 7804 and 7805.

Under Diagnostic Code 7804, a compensable rating is warranted for one or two scars that are painful or unstable.  Diagnostic Code 7805 provides that other scars, including linear scars, and other effects of scars are evaluated under Codes 7800, 7801, 7802, 7804.  Any disabling effect(s) not considered in a rating provided under Codes 7800-04, should be evaluated under an appropriate diagnostic code.

An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar.  Id. at Note (1).  If one or more scars are both unstable and painful, the rating criteria provide that 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Id. at Note (2).  Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable.  Id. at Note (3).

Turning to the relevant evidence of record, the June 2012 VA examination revealed that the Veteran had residual surgical scars located on the anterior trunk, measuring at 0.04 in2 (2.3 cm2).  No scars or disfigurement of the head, face or neck were found.  The scars were not painful or unstable, with frequent loss of covering of skin.  No superficial or deep nonlinear scars were discovered.  There was no limitation of function related to the Veteran s scars.  No other pertinent physical findings, complications, conditions, signs and/or symptoms were associated with the Veteran s scars.  His condition did not impact his ability to work.

Pursuant to the November 2016 Board remand decision, the Veteran was afforded an additional examination.

During the December 2016 clinical evaluation it was noted that the Veteran had a prior history of multiple pneumothorax in 1974.  Bilateral pleurodesis and multiple chest tubes were indicated.  Scars associated with the Veteran s treatment were located about the trunk and were not deemed painful or unstable, with no evidence of frequent loss of covering skin.  On examination, multiple superficial non-linear scars were noted about the left and right anterior trunk.  The total area measured 43.61 cm2.  Individually, the scars measured as follows: Scar #1:20.5 X 0.8 cm, Scar #2: 3.7 X 0.3 cm, Scar #3: 4.0 X 0.5 cm, Scar #4: 3.5 X 1.0 cm, Scar #5:17.5 X 0.8 cm, Scar #6: 3.5 x 0.3 cm, Scar #7: 3.5 x 0.3 cm, and scar #8: 4.5 x 1.0 cm.  No deep non-linear scars were found.

Following the clinical evaluation, the examiner noted the appearance of multiple superficial scars but opined that they did not result in any limitation of function.  The scars were not described as painful or unstable.  No impact to the Veteran s ability to work was indicated.  Color photographs of the scars were associated with the examination report.

On review of the record, the Board finds that a compensable rating is not warranted under either Diagnostic Code 7804 or 7805 as the evidence fails to show that the Veteran s scars were objectively tender, painful, unstable, or that they have any disabling effect.  Rather, the medical evidence reveals that they are essentially asymptomatic.

In making this determination, the Board has fully considered all medical evidence and the lay assertions of record.  It also recognizes the Veteran s April 2013 substantive appeal indicating that his scars were painful and embarrassing due to the appearance of being  sewn from armpit to armpit.   Generally, the Veteran is deemed competent to report on his observable symptoms and such statements are deemed credible to the extent that they articulate the Veteran s belief that he is entitled to a higher rating.

However, in this case, the Veteran s lay assertions are outweighed by competent and credible medical evidence which evaluated the true extent of his impairment to include consideration of lay evidence.  In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the examination findings as to the type and degree of impairment.

On review of the competent and credible medical evidence, the Board finds that the current severity of the Veteran s service-connected residual scars does not meet the criteria for a compensable evaluation under the applicable diagnostic code(s).  See 38 C.F.R. � 4.118 (2017).  Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for a compensable rating for residual scars associated with status/post spontaneous pneumothorax, must be denied.  Gilbert, 1 Vet. App. at 54-56.

REASONS FOR REMAND

Entitlement to an evaluation in excess of 30 percent disabling for the Veteran's service-connected spontaneous pneumothorax residuals is remanded.

While the Board regrets the delay, additional development is necessary prior to the adjudication of the Veteran s claim of entitlement to service connection for a back condition.  38 U.S.C. � 5103A (West 2014); 38 C.F.R. � 3.159 (c) (2017).

In its November 2016 remand, the Board concluded, in part, that the issue of entitlement to service connection for a pulmonary disorder, to include COPD, as due to aggravation by the Veteran s service-connected pneumothorax condition was reasonably raised by the Veteran s April 2013 substantive appeal, and that that issue was  inextricably intertwined  with the appealed claim of entitlement to an evaluation in excess of 30 percent disabling for the Veteran s service-connected spontaneous pneumothorax.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that issues are  inextricably intertwined  where the adjudication of one issue could have a significant impact on the adjudication of another); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are  inextricably intertwined  when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

The Board acknowledges that updated treatment records and an examination were obtained in accordance with the November 2016 remand directives.  However, the increased rating issue still may not be adjudicated on the merits because the pending inextricably intertwined claim of entitlement to service connection for COPD still has not been addressed.  As such, an additional remand is required.

The matter is REMANDED for the following action:

Adjudicate the Veteran s pending claim of entitlement to service connection for a pulmonary disorder, to include COPD, as due to aggravation by his service-connected pneumothorax condition.  All necessary development must be completed.  Inform him and his representative of his appeal rights, and then return the case to the Board.

S.C. KREMBS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	N. Whitaker, Associate Counsel


judge_norm: H SEESEL

condition: herbicide

text:
��Citation Nr: 18119000

Decision Date: 07/17/18	Archive Date: 07/17/18

DOCKET NO. 15-06 124

DATE:	July 17, 2018

ORDER

Entitlement to an effective date prior to January 3, 2005 for the grant of Dependency and Indemnity Compensation (DIC) benefits is denied.

Entitlement to payment of accrued benefits for disability due to herbicide exposure is denied.

FINDINGS OF FACT

1. The VA did not receive a claim for DIC benefits from the Appellant prior to January 3, 2005.

2. The Veteran did not file a claim for benefits for lung cancer during his lifetime, had no pending claims at the time of his death, nor was due any benefits unpaid prior to the last date of entitlement.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to January 3, 2005 for the award of dependency and indemnity compensation benefits have not been met. 38 U.S.C. �� 5110, 5111 (2012); 38 C.F.R. � 3.400 (2017).

2. The requirements for payment of accrued benefits for disability due to herbicide exposure have not been met. 38 U.S.C. �� 5107, 5121 (2012); 38 C.F.R. �� 3.1000 (2016); Nehmer v. United States Veterans Admin, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 1966 until March 1975 and from July 1975 until March 1977.  He received the Combat Infantryman Badge and Purple Heart, among other decorations, for this service.  The Appellant is the surviving spouse of the Veteran, who died in June 1996.

1. Entitlement to an effective date prior to January 3, 2005 for the award of DIC

The effective date of an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. � 3.400 (2017). The date of death is the appropriate effective date only if the claim for dependency and indemnity compensation was received within one year of the initial report of actual death. 38 U.S.C. � 5110(d)(1) (2012); 38 C.F.R. � 3.400 (c) (2017). Actual payment of the award commences on the first day of the calendar month following the month in which the award became effective. 38 U.S.C. � 5111 (2012).

The RO established January 3, 2005 as the effective date for the award of DIC, as, on that date, the Appellant filed for widower s insurance benefits using form SG-SSA-10, which also indicates it is considered an application for veterans benefits.

In her February 2015 substantive appeal the Appellant stated that she first applied for DIC benefits in September 1996. She submitted a copy of a letter dated in September 1996 and addressed to the Agent Orange Veteran Payment Program stating that the Veteran had died of cancer and she wished to received survivors of deceased veterans benefits.

A review of the claims file does not indicate that such letter was ever received by the VA. A VA Medical Center Report of Hospitalization noting the Veteran s death was added to the file in July 1996, but there is no correspondence of record from the Appellant from the date of the Veteran s death until a March 2011 application for accrued benefits.

As the evidence in the claims file does not support that the VA received a claim for DIC benefits from the Appellant prior to January 3, 2005, an earlier effective date is not warranted.

2. Entitlement to accrued benefits for disability due to herbicide exposure

Accrued benefits are monetary benefits to which an individual was entitled at the time of his or her death under laws administered by VA, either based on existing ratings or decisions, or based on evidence in the file at date of death, which are due and unpaid. 38 U.S.C. � 5121; 38 C.F.R. � 3.1000. While an accrued benefits claim is separate from a veteran s claim filed prior to death, the accrued benefits claim is derivative of the veteran s claim; thus, an appellant takes the veteran s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). A pending claim is a claim that has not been finally adjudicated. 38 C.F.R. � 3.160 (c).

The Veteran served in the Republic of Vietnam during the Vietnam Era. Diseases, including respiratory cancers, associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service.  38 U.S.C. � 1116(a)(1). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  38 C.F.R. � 3.307(a)(6)(iii); 38 U.S.C. � 1116(f).

VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). 38 C.F.R. � 3.816 sets forth the effective date rules required by orders of the United States District Court in Nehmer.

Under Nehmer, a claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant s application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. � 3.816 (c)(2) (2017).

In her December 2014 notice of disagreement, the Appellant argued that the Veteran had filed for VA benefits for cancer caused by Agent Orange prior to his death. She noted he died of lung cancer at a VA facility. In her February 2015 substantive appeal, she stated that the Veteran spoke with a VA representative in 1996 and requested to be given a 100 percent disability rating. She stated that he again requested a total disability rating due to Agent Orange exposure when he was admitted to a VA hospice center prior to his death.

A review of the Veterans claims file shows only one claim filed by the Veteran prior to his death- a 1978 claim for right and left knee disabilities, hearing loss, a finger fracture, and burns on the right hand. There is no record of any other claims for compensation benefits being filed with the VA, to include in 1996 prior to the Veteran s death.

(Continued on the next page)

Therefore, the Board finds that, at the time of his death, the Veteran did not have a pending claim for service connection for lung cancer, and no other pending claims are shown by the record. A review of the evidence of record does not reflect anything that would constitute an informal or inferred claim for service connection for lung cancer prior to his death. Accordingly, the appeal for accrued benefits is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

H. SEESEL

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	A. Christensen