judge_norm: KRISTIN HADDOCK

text:
Citation Nr: 24012000
Decision Date: 03/14/24	Archive Date: 03/14/24

DOCKET NO. 20-01 064
DATE:  March 14, 2024

REMANDED

Entitlement to service connection for a dental disability, to include for treatment purposes, is remanded.

REASONS FOR REMAND

The Veteran had active naval service from January 1978 to August 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2022, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in September 2022 at which time the case was remanded to the AOJ for additional development. The case is once again before the Board.

Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. � 1712; 38 C.F.R. �� 3.381, 4.150, 17.161.

Dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. � 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. � 4.150, Diagnostic Codes 9900-9916.

Thus, in order to establish service connection for VA compensation purposes, it is not enough to show that the teeth were lost due to trauma during active-duty service. The evidence must demonstrate that the trauma resulted in loss of substance of the maxilla or mandible, which then resulted in loss of teeth. VA's General Counsel has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997).

Under 38 C.F.R. � 3.381, treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal diseases are to be considered service-connected only for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. � 17.161.

The Veteran asserts that he has a present dental condition due to various events in service to include radiation exposure, residuals from extracted molars, and to service trauma involving his participation in a research experiment that required that he be fitted with a mouth guard. Regarding the research experiment, there is a June 2021 affidavit on file from a physician who served as Deputy Scientific Director and Chief of the Human Research Division. This physician stated that candidates with periodontitis (gum disease), severe cavities, missing teeth, or severely misaligned teeth were disqualified from the experiment since those conditions could interfere with correct placement of the mouth-mounted transducer packages. He also stated that following the initial dental examinations at the Naval Regional Dental Clinic, additional dental work was performed on the subjects to ensure a precise fitting of the module for the mouth-mounted transducer packages.

In terms of a present dental condition, there is conflicting dental evidence. An August 2017 dental consult note from a private dental practice (Harris Dental Clinic) shows that radiographs revealed horizontal and vertical bone loss as well as missing teeth and "hopeless teeth". These records include an undated, unsigned record, stating that "this patient is in dire need of extensive dental work," and it contains an opinion that there is "a direct correlation attributable to human research dental work and subsequent service-connected procedures". In contrast, there is an August 2023 VA contract dental examination reporting showing that panographic/intraoral imaging was performed revealing nothing abnormal. This report concludes that there was no objective evidence of a dental disability, and no record of injuries, just fillings.

In consideration of this conflicting dental evidence, the Veteran should be afforded a new dental examination to clarify whether he has a present dental disability as claimed. 38 U.S.C. � 5103A(d). Notably, the Veteran's representative requested in written argument in January 2024 that the Veteran be given the opportunity for a new examination if the claim could not be granted. Also, the private dental records in August 2017 state that additional reports would be provided upon request. Accordingly, the AOJ should make a request for any additional dental records related to the August 2017 dental consult as well as any other outstanding dental records. 38 U.S.C. � 5103A(b).

Lastly, in addition to the Veteran's assertion that his dental disability is related to radiation exposure, inservice molar extraction, and his participation in a human research experiment, the Board notes that his service treatment records show that he sustained multiple head trauma and a nasal fracture in September 1979 after he was hit in the nose with a fist and fell to the ground hitting the right side of his temple area. Additional service treatment records received in January 2023 show that the findings related to this incident were positive for a tender right jaw. Accordingly, the new dental opinion should include consideration of this service trauma.

The matter is REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for Harris Dental Clinic regarding his dental consult in August 2017, in addition to any additional private dental treatment he has received. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile.

2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any dental disability that may be present. Any indicated studies should be performed. After examining the Veteran and reviewing his claims file, to include the August 2017 private dental consult records and the August 2023 VA contract dental examination report, the examiner should identify all dental disabilities that are present.

For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability manifested during or is etiologically related to the Veteran's active service, to include his service as a human research subject and any modifications required for those experiments, and the tender right jaw related to head trauma and a nose fracture in September 1979. The examiner should also provide an opinion as to whether any dental disability is due to loss of substance of the body of the maxilla or mandible during service due to in-service trauma or disease such as osteomyelitis. A rationale for all opinions expressed must be provided.

(Continued on the next page)

?

Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted.

3. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Shawkey, Counsel

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


series: legacy

judge_norm: D MARTZ AMES

judge_role: Veterans Law Judge

disposition: granted

condition: knee

condition: back

benefit: tdiu

text:
Citation Nr: 24013000
Decision Date: 03/27/24	Archive Date: 03/27/24

DOCKET NO. 20-15 872
DATE: March 27, 2024

ORDER

New and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability, status post-stress fracture, right tibia.

New and material evidence has been received to reopen a claim for entitlement to service connection for meniscal tear and arthritis, left knee status post total knee replacement, to include as secondary to right knee disability.

Entitlement to service connection for a right knee disability, status post-stress fracture, right tibia is granted.

Entitlement to service connection for meniscal tear and arthritis, left knee status post total replacement, to include as secondary to right knee disability is granted.

Entitlement to service connection for a low back disability, to include as secondary to bilateral knee disabilities is granted.

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

FINDINGS OF FACT

1. The Veteran's claim for service connection for a right knee disability, status post-stress fracture, right tibia was previously denied in an April 2003 rating decision.  He did not submit a notice of disagreement and new and material evidence was not submitted or procured within one year of its promulgation.

2. Evidence received since the April 2003 final denial is new and relates to an unestablished fact necessary to substantiate the claim.

3. The Veteran's claim for service connection for meniscal tear and arthritis, left knee status post total knee replacement was previously denied in an April 2003 rating decision.  He did not submit a notice of disagreement and new and material evidence was not submitted or procured within one year of its promulgation.

4. Evidence received since the April 2003 final denial is new and relates to an unestablished fact necessary to substantiate the claim.

5. The Veteran's right knee disability, status post-stress fracture, right tibia was incurred during or caused by his period of active service.

6. The Veteran's left knee meniscal tear and arthritis, left knee status post total knee replacement, was caused by his service-connected right knee disability.

7. The Veteran's low back disability was caused by his service-connected right knee disability.

8. The Veteran's service-connected disabilities preclude him from being able to obtain or follow substantially gainful employment.

CONCLUSIONS OF LAW

1. New and material evidence has been received to reopen the claim for entitlement to service connection for a right knee disability, status post-stress fracture, right tibia.  38 U.S.C. � 5108; 38 C.F.R. � 3.156(a).

2. New and material evidence has been received to reopen the claim for entitlement to service connection for meniscal tear and arthritis, left knee status post total knee replacement.  38 U.S.C. � 5108; 38 C.F.R. � 3.156(a).

3. The criteria for service connection for a right knee disability, status post-stress fracture, right tibia are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

4. The criteria for service connection for meniscal tear and arthritis, left knee status post total knee replacement as secondary to a service-connected right knee disability are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

5. The criteria for service connection for a low back disability as secondary to a service-connected right knee disability are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.310.

6. A TDIU due to the Veteran's service-connected disabilities is warranted.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Army from May 1968 to November 1970.  His decorations include the Combat Infantryman Badge (CIB).

In January 2024, the Veteran testified before the undersigned at a Board hearing.  A transcript of that hearing is of record.

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

Neither the Veteran nor his representative have 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).

New and Material Evidence

1. Whether new and material evidence has been submitted to re-open the Veteran's claim for a right knee disability, status post-stress fracture, right tibia

2. Whether new and material evidence has been submitted to re-open the Veteran's claim for entitlement to service connection for meniscal tear and arthritis, left knee status post total knee replacement

The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. � 7104 (b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions).  However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence.  See 38 U.S.C. � 5108.

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

In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed."  Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply.  Duran v. Brown, 7 Vet. App. 216, 220 (1994).

In April 2003, the RO denied the Veteran's claim for service connection for bilateral knee disabilities on the basis that the medical evidence of record did not establish that any current bilateral knee disabilities were proximately due to his active service.  He did not submit a notice of disagreement and new and material evidence was not submitted or procured within one year of its promulgation.

There is now additional evidence that indicates his bilateral knee disabilities may have been caused by his period of active service, including February 2017 and December 2017 private medical opinions indicating a positive nexus between his bilateral knee disabilities and his period of active service.  Presuming the credibility of this evidence, this evidence is new and material.

Reopening of the Veteran's claims for service connection for bilateral knee disabilities based on the receipt of new and material evidence is therefore warranted.  Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening").

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. � 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected.  38 C.F.R. �� 3.303 (b), 3.307(a)(3).  The Veteran's claimed right ear sensorineural hearing loss is chronic diseases as defined by 38 C.F.R. � 3.309(a).

When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service.  38 C.F.R. � 3.303(d).

Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. � 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability.  In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. � 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).

1. Entitlement to service connection for a right knee disability, status post-stress fracture, right tibia

The Veteran claims entitlement to service connection for degenerative arthritis and chondromalacia patella, right knee status post medial meniscus tear with meniscectomy and stress fracture, right tibia.  Specifically, the Veteran contends that his current right knee disability was incurred during or caused by his period of active service.  In a January 2024 Board hearing, the Veteran testified that his current right knee disability was caused by a right leg tibia fracture he had during his period of active service.  The Veteran's current right knee disability has been confirmed in VA medical and private treatment records.  A February 2018 VA knee and lower leg conditions did not report a formal diagnosis of a right knee disability but did note right knee pain resulting in abnormal range of motion and functional impairment.  Accordingly, the Board finds that the Veteran has a current right knee disability.  Further, the Veteran's service treatment records note that he fractured his right tibia in November 1968, during his period of active service.  At issue in the Veteran's claim is whether his current right knee disability was caused his period of active service.

In February 2017 and December 2017, the Veteran submitted private medical opinions from his treating provider.  In his January 2024 Board hearing, the Veteran testified that he has been treated for his right knee disability by this provider since 2005.  In the February 2017 and December 2017 medical opinions, the private physician concluded that it is more likely than not that the Veteran's current right knee disability was caused by his period of active service.  The private physician reasoned that the Veteran's current right knee disability resulted from trauma associated with military activity, specifically military activity required for a paratrooper.  Further, the private physician noted that the Veteran's current right knee disability was caused by the right tibia fracture in November 1968.  The Board finds the February 2017 and December 2017 medical opinions to be thorough and well-reasoned.  Additional probative value is assigned to the medical opinions as they are authored by the Veteran's treating physician of nearly two decades, indicating the physician's extensive knowledge of the Veteran's medical history and current right knee disability.  The February 2017 and November 2017 private medical opinions are highly favorable evidence in favor of the Veteran's claim for service connection.

VA medical knee and lower leg conditions examinations and opinions were completed and associated with the claims file in June 2017 and February 2018.  Neither examination noted a formal right knee disability diagnosis but both examinations reported pain resulting in functional impairment.  The June 2017 and February 2018 medical opinions concluded it was less likely than not that the Veteran's right knee disability was incurred during or caused by his period of active service.  The examiners reasoned that the Veteran's right tibia fracture healed without incident, no further right knee disability was noted until many decades after completion of active service, and that the Veteran's current right knee disability was related to wear and tear from the Veteran's occupation and obesity.  The Board finds the June 2017 and February 2018 medical opinions to be thorough and well-reasoned.  The June 2017 and February 2018 medical opinions are probative evidence against the Veteran's claim for service connection.

The Board finds that the evidence of record regarding the etiology of the Veteran's current right knee disability is in approximate equipoise.  In Lynch v. McDonough, 21 F.4th 776 (2021), the Federal Circuit held that a veteran is entitled to the benefit of the doubt when the evidence is in approximate balance, or nearly equal, and does not require that the evidence be in exact equipoise for benefit of the doubt to apply.  Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability is warranted, and the claim is granted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.

2. Entitlement to service connection for meniscal tear and arthritis, left knee status post total replacement, to include as secondary to right knee disability

3. Entitlement to service connection for a low back disability, to include as secondary to bilateral knee disabilities

The Veteran claims entitlement to service connection for left knee and low back disabilities.  Specifically, he contends that his current left knee and low back disabilities were caused or aggravated beyond their natural progression by his current right knee disability.  As a result of this decision, the Veteran's current right knee disability is service connected.

As noted above, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury.  38 C.F.R. � 3.310(a).

The Veteran's current left knee and low back disabilities were confirmed in June 2017 VA examinations.  At issue in the Veteran's claim is whether his left knee and back disabilities were caused or aggravated by his service-connected right knee disabilities.

In February 2017 and December 2017, the Veteran submitted a private medical opinion from his treating medical provider noting that his left knee disability and back disability were secondary to his right knee disability.  The physician detailed that the Veteran's right knee disability resulted in an antalgic gait.  The Veteran's antalgic gait caused his low back disability.  The physician then concluded that the Veteran's right knee disability and low back disability caused the Veteran's left knee disability.  The Board finds the February 2017 medical opinion to be thorough and well-reasoned.  Additional probative value is assigned to the medical opinion as it is authored by the Veteran's treating physician of nearly two decades, indicating the physician's extensive knowledge of the Veteran's medical history and current right knee disability.  The February 2017 private medical opinion is highly favorable evidence in favor of the Veteran's claim for service connection.

Based on the probative medical evidence of record, the Board finds that the Veteran's left knee and low back disabilities were caused or aggravated by his service-connected right knee disability.

Entitlement to service connection for meniscal tear and arthritis, left knee status post total replacement, and a low back disability is warranted.

TDIU

1. Entitlement to TDIU

Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. � 3.340(a)(1).  A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).  Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age.  38 C.F.R. �� 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Provided a claimant does not meet these minimum percentage rating requirements of � 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under � 4.16(b) if it is established she is indeed unemployable on account of service-connected disabilities.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration.

The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Rather, the record must demonstrate some factor that takes the situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.; see also 38 C.F.R. �� 4.1, 4.15.

In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Other factors that may receive consideration include his employment history, level of education and vocational attainment.  See 38 C.F.R. � 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).  By comparison, the impact of any nonservice-connected disabilities, or advancing age, are not factors taken into consideration for this purpose.  38 C.F.R. �� 3.340, 3.341, 4.16, 4.19.

In addition, "marginal employment" shall not be considered substantially gainful employment.  38 C.F.R. � 4.16(a).  See Faust v. West, 13 Vet. App. 342, 355 (2000).  Where the claimant's working capacity might be limited to "marginal employment," the question of whether marginal employment must be addressed including where the Veteran is not presently employed.  See Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016).

In the present case the Veteran, is service-connected for posttraumatic stress disorder (rated at 50 percent); diabetes mellitus, type II (rated at 20 percent); peripheral neuropathy, left lower extremity (rated at 20 percent); peripheral neuropathy, right lower extremity (rated at 20 percent); hearing loss (rated as noncompensable); and hypertension (rated as noncompensable).  The Board notes that as a result of this decision the Veteran is service-connected for bilateral knee disabilities and a low back disability.  The Veteran has a total combined disability rating of 80 percent.  Accordingly, the Veteran meets the schedular requirements for entitlement to TDIU.

The Veteran has asserted that his service-connected disabilities precluded him from being able to obtain or follow substantially gainful employment.  The Veteran's Application for Increased Compensation Based on Unemployability notes that the Veteran last worked fulltime in November 2006 as right of way technician for an electrical company.

In a January 2024 Board hearing, the Veteran testified that his bilateral knee disabilities prevented him from being able to complete his job requirements as a lineman for a local electric company.  The Veteran also testified that service-connected peripheral neuropathy of the bilateral lower extremities affected his ability to walk, climb, and affected his balance.  A February 2017 private medical opinion completed by the Veteran's treating physician stated that his bilateral knee and low back disabilities have rendered the Veteran unable to work.  In addition, the Veteran's service-connected PTSD manifests in social impairment with reduced reliability and productivity. A September 2023 initial PTSD VA examination noted that the Veteran's PTSD caused symptoms of depressed mood, suspiciousness, mild memory loss, such as forgetting names, directions or recent events, and disturbances of motivation and mood.

(Continued on the next page)

?

Based on the probative evidence of record, the Board finds that the Veteran's service-connected disabilities have precluded him from being able to obtain or follow substantially gainful employment.  Accordingly, entitlement to TDIU is warranted.

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Riordan, Counsel

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


judge_norm: KELLI A KORDICH

text: Entitlement to TDIU to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), prior to November 20, 2008, is granted.

text:
Citation Nr: 24014000
Decision Date: 04/03/24	Archive Date: 04/03/24

DOCKET NO. 06-34 607
DATE: April 3, 2024

ORDER

Entitlement to TDIU to include on an extraschedular basis pursuant to 38 C.F.R. � 4.16 (b), prior to November 20, 2008, is granted.

FINDING OF FACT

Resolving any reasonable doubt in the Appellant's favor, prior to November 20, 2008, the evidence of record persuasively shows that the Appellant is precluded from engaging in substantially gainful employment due to his service-connected disability.

CONCLUSION OF LAW

Prior to November 20, 2008, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. �� 1155, 5107(b); 38 C.F.R. �� 3.340, 3.341, 4.16(b), 4.18.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Appellant served on active duty in the United States Marine Corps from January 1969 to February 1972.  This matter is on appeal from a November 2005 rating decision.

In December 2020, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge of the Board.  A transcript of the hearing is of record.

In a May 2022 decision, the Board denied the Appellant's TDIU claim and remanded the claim of entitlement to an increased rating for a lumbar spine disability which will be addressed by the Board in a separate decision.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2023, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the decision and remanded the claim.

In September 2023, this matter was remanded by the Board for further development by the originating agency.  The Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

TDIU prior to November 20, 2008

Procedural History

Before addressing the merits of this appeal, the Board must explain the procedural history of this case: The Board initially adjudicated the issue now before it in a May 2022 decision, in which the Board denied entitlement to TDIU.

In the August 2023 JMPR, the Parties found that the Board failed to set forth an adequate statement of reasons or bases for failing to "adequately explain how it found the Appellant was able to perform substantially gainful employment that permitted sitting for the majority of the workday; or alternatively shift between sitting and standing throughout the workday."  The Parties also agreed that the Board erred when it "failed to adequately explain how it found that Appellant would be able to perform substantially gainful employment as a dispatcher, customer service agent, or ticket taker."  The Board also "failed to adequately explain how Appellant's high school education and work history as a taxi driver allowed him to secure and follow substantially gainful employment as a dispatcher, customer service agent or ticket taker.  Finally, the Board "failed to adequately explain how Appellant's service-connected disabilities, which limit his sitting, standing, walking, stair climbing and lifting, would allow for Appellant to secure and follow substantially gainful employment in these positions."

In September 2023, in light of the points raised by the Parties to the JMPR, the Board granted entitlement to TDIU on a schedular basis, since November 20, 2008, and remanded TDIU on an extraschedular basis pursuant to 38 C.F.R. � 4.16(b), prior to November 20, 2008, for referral to the Chief Benefits Director or the Director, Compensation Service.

The Appellant seeks entitlement to TDIU prior to November 20, 2008, due to his service-connected disabilities.  He has alleged that he is unemployable due to his service-connected disabilities.  See February 2023 VA Form 21-8940.  He stated that he last worked and became too disabled to work in 2000 and frequently missed work due to his back disability.

VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities.  If there is only one such disability, that disability must be ratable at 60 percent or more.  If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16 (a).  Marginal employment shall not be considered substantially gainful employment.

Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  38 C.F.R. � 4.16 (a).  Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working.  See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms "substantially gainful occupation" and "substantially gainful employment" in � 4.16 are "synonymous").

Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in � 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration.  38 C.F.R. � 4.16 (b).  The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance.  Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service.  Bowling v. Principi, 15 Vet. App. 1 (2001).

In Snider v. McDonough, the Court discussed the steps the Board must take to deny referral of an extraschedular TDIU.  Pursuant to Ray v. Wilkie, 31 Vet. App. 58 (2019), entitlement to an extraschedular TDIU must be referred to the Director, Compensation Service, for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities.  When denying extraschedular TDIU referral, the Board must determine both of the following: 1) that a referral is not warranted under the "reasonable possibility" standard; and 2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities.  Snider, 35 Vet. App. 1 (2021).

The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation.  See VAOPGCPREC 75-91 (Dec. 17, 1991).  The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage").  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal.  Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994).

In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. �� 3.321, 3.340, 3.341, 4.16.

Prior to November 20, 2008, the Veteran is service connected for a lumbar spine disability, rated as 40% disabling and residuals of fracture, third metacarpal right hand and multiple lipomas, each rated as noncompensable.  Accordingly, prior to November 20, 2008, the Veteran does not meet the schedular requirements for consideration of a TDIU.  38 C.F.R. � 4.16 (a).  Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis.  See 38 C.F.R. � 4.16 (b).

Although the Veteran has not met the schedular percentage requirement, he may still be considered for a TDIU rating under 38 C.F.R. � 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in � 4.16(a).  Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. � 4.16 (a).  His service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. � 4.16(b).

The evidence shows the Appellant has the equivalent of a high school diploma and past work as a driver.  See SSA disability records.  The Appellant reported he last worked in 2000 as a taxi driver. See Board hearing testimony.  He stated he stopped working because his back and eyesight got too bad. Id.

In August 2023, the Appellant submitted a June 2023 Vocational Assessment Report in which the vocational rehabilitation counselor opined that the Appellant's service-connected lumbar spine disability has precluded his ability to secure and follow substantially gainful employment, to include unskilled sedentary employment, since at least June 2005 based on a review of the medical records.  He opined that due to his inability to sit for prolonged periods of time, he was precluded from sitting for the majority of an eight-hour workday.

Pursuant to the Board's September 2023 remand, in a January 2024 advisory opinion the Director of Compensation Service, opined that while the cumulative evidence indicates there were impairments from the service connected low back disability, the evidence of record does not support a finding that the service connected low back disability alone would have precluded all forms of substantially gainful activity.

The Director noted the Appellant's history of chronic back pain that worsened with lifting.  He was previously employed as a taxi driver and reportedly stopped working in 2000.  However, VA treatment records from 2001 show that he continued working as a driver two to three days a week for 12 to 15 hours per day during which time he frequently stopped to stretch and walk.  These records also show that he stopped working to care for his mother.  An October 2005 VA examination indicates that his low back disability was manifested by back pain with flare-ups precipitated by prolonged sitting, bending, and movements that stressed the lower back.

The Director considered the June 2023 Vocational Assessment Report in which the counselor opined that his service-connected low back disability made him unable to secure and follow substantially gainful employment since at least June 2005.  The Director further stated that for an extraschedular TDIU, "the majority of the evidence should clearly support that the service-connected disabilities are by themselves the cause of the Veteran's inability to obtain and maintain gainful employment.  The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to individual unemployability benefits."  The Director opined that the records fail to support entitlement to TDIU on an extraschedular basis for the period on appeal.

Given the Veteran's education level and work history the Board finds that it is unlikely that the Veteran was able to obtain or maintain substantially gainful employment due to his service-connected low back disability prior to November 20, 2008.  Here, he has indicated that his work as a taxi driver, which required prolonged sitting, was severely impacted by his service-connected back disability prior to November 20, 2008.  This is supported by the persuasive medical and lay evidence of record as discussed above.  The Board has considered the role that the Appellant's caregiving has played in his employment.  However, in resolving all doubt in favor of the Veteran and in light of the points raised the Parties to the JMPR, the Board resolves all benefit of the doubt in the Veteran's favor and finds that the evidence of record supports an extraschedular TDIU prior to November 20, 2008.  38 C.F.R. � 4.16(b).

The Board has also considered whether SMC at the housebound rate is warranted, even though not expressly raised. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see Buie v. Shinseki, 24 Vet. App. 242 (2010) (requiring VA to assess all of the claimant's disabilities to determine whether entitlement to SMC under 38 U.S.C. � 1114 (s) is established whenever a veteran with a total disability rating is subsequently awarded service connection for any additional disability or disabilities even in the absence of an express claim for SMC).  However, SMC benefits are not warranted in this case as the Appellant does not have a single disability rated as total along with additional disabilities that total 60 percent.  See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a TDIU rating could qualify for compensation at the 38 U.S.C. � 1114 (s) rate, but only if the TDIU was based on a single disability).

Finally, neither the Appellant 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).

?

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Adams, Counsel

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


judge_norm: JIMMY L BARDIN

condition: ptsd

disposition: remanded

condition: tbi

text:
Citation Nr: 24015000
Decision Date: 04/05/24	Archive Date: 04/05/24

DOCKET NO. 20-12 599
DATE: April 5, 2024

ORDER

New and material evidence having been received, the reopening of the claim for a major depressive disorder (formerly claimed as posttraumatic stress disorder) is granted.

Entitlement to service connection for a major depressive disorder (formerly claimed as posttraumatic stress disorder (PTSD) is granted.

REMANDED

Entitlement to service connection for a traumatic brain injury (TBI) is remanded.

FINDINGS OF FACT

1. In an unappealed February 2013 rating decision, the RO denied the Veteran's claim of entitlement to service connection for major depressive disorder.

2. The approximate balance of evidence supports the finding that the Veteran's major depressive disorder is etiologically related to active service.

CONCLUSIONS OF LAW

1.  New and material evidence has been received and is sufficient to reopen a claim of entitlement to service connection for a major depressive disorder. 38 U.S.C. � 5108; 38 C.F.R. � 3.156.

2. The criteria for entitlement to service connection for a major depressive disorder has been met. 38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303, 3.304.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from August 1972 to June 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO).

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2024. A transcript of the hearing has been associated with the claims file.

Application to Reopen

A final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. � 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. � 5108.

"New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. � 3.156(b). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999).

New and material evidence having been received, the reopening of the claim for a major depressive disorder (formerly claimed as posttraumatic stress disorder) is granted.

In a February 2013 rating decision, the Veteran was denied entitlement to service connection for a major depressive disorder based on the finding that there was no medical link between his major depressive disorder and active military service. The Veteran did not appeal the decision.

The evidence received since the February 2013 rating decision includes lay statements, treatment records, personnel records, July 2019 informal hearing, and a positive private nexus medical opinion.

The Board finds that the private nexus medical opinion and the Veteran's lay statements are new and material. Specifically, the private examiner opined that the Veteran's persistent depression is related to active service. Further, the Veteran indicated that he was assaulted twice while in service. See October 2016 VA 21-4138 Statement in Support of Claim. Moreover, the Veteran made statements about his trauma and the associated symptoms while in active service.  See May 2013 Military Personnel Record. The private medical opinion and the Veteran's lay statements are not cumulative or redundant of the evidence previously of record. Moreover, both may raise a reasonable possibility of substantiating the claim of entitlement to service connection for a major depressive disorder. Accordingly, the reopening of the claim of entitlement to service connection for a major depressive disorder is warranted.

Service Connection

Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. � � 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. � 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability").

In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time, he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. � 5107; 38 C.F.R. � 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence weighs against the claim, in which case the claim is denied. 38 U.S.C. � 5107; 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to service connection for a major depressive disorder (formerly claimed as posttraumatic stress disorder (PTSD) is granted.

The Veteran contends that his major depressive disorder was due to active service. The Veteran reported that he was constantly physically and psychologically  broken down which resulted in feelings of hatred, isolation, drug usage to cope with military environment, memory issues, nervousness, anxiety, quick temperedness, harassment, and being prone to violence against others. He reported being physically assaulted on a couple of occasions one of which resulted in a broken nose. See May 2013 Military Personnel Record.

The Veteran's service treatment records are silent for any complaints, treatments, or diagnosis of a major depressive disorder. However, the Board notes that the Veteran's complete records do not appear to be available after a record search. As such, VA has a heightened duty to assist the Veteran in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, which has been done to the extent possible, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005).

The military personnel records showed that the Veteran had a history of troubling experiences while serving in the military that include military violations/subsequent reprimands, reported assault on Cannoneer field, repeated counseling from his supervisors, self-assessed symptoms associated with trauma, successful rehabilitation for drugs and alcohol and his desire to leave military service due to a stressful environment.

The post service treatment records reflect that the Veteran has a history of depression, anger, and episodes of feeling sad, and overwhelmed coupled with a continuous lack of motivation and energy. See February 2013 CAPRI. The record show that the Veteran lives a stressful life with no water or electricity or stable address. The records show that the Veteran takes his depression medication for more energy and motivation. See December 2016 CAPRI. Moreover, the records revealed that the Veteran reported that he was assaulted that resulted in a broken nose. See August 2012 Medical Treatment Records-Furnished by SSA.

At the February 2013 VA examination for PTSD, the Veteran was diagnosed with depressive disorder, alcohol dependence, and cannibis dependence. The examiner noted that the Veteran had no exposure to a traumatic event. The Veteran had psychological symptoms that included depressed mood, chronic sleep impairment, and mild memory loss. The examiner stated the Veteran does not have a diagnosis of PTSD and that his current diagnosis, depressive disorder is not caused by or related to military service.

The September 2019 private psychologist stated that based on the totality of evidence, an accurate psychiatric diagnostic formulation for the Veteran would involve persistent depressive disorder and polysubstance dependence.  The Veteran wrote a letter in 1973 detailing his distress, and this is consistent with performance records showing a progression of an increasing disregard for his appearance, increasing tardiness, and worsening adjustment to military service over time. It was due to this that he was discharged. What began as an adjustment disorder progressed to major depression. The Veteran began receiving treatment in 1987 but did not continue. He has attended treatment on and off since that time and has consistently been diagnosed with depression. The Veterans persistent depressive disorder more likely than not began during the course of his military service.

Substance abuse treatment records demonstrate that the Veteran participated in substance abuse treatment willingly and enthusiastically, and while in treatment was able to remain sober. However, after his treatment ended, he returned to use, as he continued to struggle with mood issues. The Veteran substance use difficulties began during service and are secondary to his mood disorder, and thereby also service connected. The prognosis for the Veteran is guarded. The Veteran has a history of entrenched difficulties with psychiatric conditions as well as substance abuse and has had difficulty remaining in care. The Veteran would benefit from a return to individual counseling as well as psychopharmacology and treatment for his depression.

The private psychologist indicated that the February 2013 VA examiner does not appear to have reviewed the Veteran's military records beyond his DD-214. As a result, the VA examiner appeared to be unaware of the Veteran's documented difficulties with adjustment in service as well as his substance abuse treatment during that time. Further, the VA examiner concluded that his depressive behavior was not caused by or related to service. However, the VA examiner did not explain the reasoning for the determination.

In conclusion, the Veteran is a gentleman with a long-standing history of persistent depressive disorder and polysubstance dependence both more likely than not beginning during the course of his service.

At the January 2024 Board hearing, the Veteran testified that he was totally confused and disoriented after being assaulted. He reported that his nose had been broken and experienced head trauma from being kicked in the face. Further he reported that there was a close call on the grenade range due to a mishap by one of his fellow Veterans. His representative mentioned that he was beaten with pugil sticks where he lost consciousness. The Veteran further testified that he was in the process of moving at the time of the VA exam request. He was unaware of any scheduled VA examinations. The Veteran kept losing his focus when asked questions about his TBI and major depressive disorder.

In this case, the Veteran asserts that his major depressive disorder began during active service. The record shows that the Veteran has a major depressive disorder such that the first element of direct service connection has been met.

Next, the Veteran's service treatment records are silent for any complaints, treatments, or diagnosis of a major depressive disorder. However, the Board notes that the Veteran's complete records do not appear to be available after a record search. Further, the VA provided the personnel record that provided the Veteran's history of events in service but there were no detailed objective medical reports. The Veteran still contends that his depression is directly connected to service. The Veteran asserts that the symptoms continued since service which resulted in his current disability. In affording the Veteran the benefit of the doubt, the second element of the direct service connection has also been met.

The Board finds the September 2019 private medical opinion to be adequate. In this regard, the examiner thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran and the February 2013 VA examiner, and provided a supporting rationale for the conclusions to be reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Whereas the Board finds the February 2013 VA medical opinion to be inadequate as the examiner failed to explain the reasoning in arriving at the medical conclusion. Further, the February 2013 examiner was silent on the matter of whether or not his depression began during military service.

Having considered these opinions and the missing service treatment records, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding the question of whether the Veteran's major depressive disorder is due to active service. Therefore, reasonable doubt is resolved in favor of the Veteran, and service connection for his major depressive disorder is granted.

REASONS FOR REMAND

Entitlement to service connection for a traumatic brain injury (TBI) is remanded.

The Veteran contends that his alleged TBI/ head trauma is related to active service.

The Veteran testified during his January 2024 Board hearing that he was totally confused and disoriented after being assaulted. He reported that his nose had been broken and experienced head trauma from being kicked in the face several times. Further, he reported that there was a close call on the grenade range due to a mishap by one of his fellow Veterans. His representative mentioned that he was beaten with pugil sticks where he lost consciousness. The records show that the Veteran has memory and balance issues as well. He further testified that he continues to feel the residual effects of being kicked in the face several times. He reported the incident to the infirmary.

The Veteran has not yet been afforded a VA examination for his claimed TBI/residuals and the duty to obtain one is triggered based on his testimony and the evidence of record. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

1. Schedule the Veteran for examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's alleged TBI/TBI residuals. Provide a written notification to the Veteran as to the place, date, and time of the VA examinations and include in the claims file.

The record and a copy of this Remand must be made available to the examiner, and all indicated tests and studies should be accomplished. Thereafter, the examiner should address the following inquiries:

Does the Veteran have a current diagnosis of a TBI, or any residuals thereof, to include memory loss, and balance issues separate and distinct from any service-connected disability? If so, please identify all current residuals.

If the Veteran has a current diagnosis of TBI, or any residuals thereof, whether it is at least as likely as not (approximately 50 percent probability or better) TBI was incurred while on active duty as a result of his being assaulted and/or being beaten with a pugil stick?

In offering such opinions, the examiner should address the Veteran's report that he was assaulted in service that resulted in a broken nose. The Veteran testified that he was totally confused and disoriented after being assaulted/kicked in the face several times. His representative stated that he was beaten with pugil sticks in a separate incident. See May 2013 Military Personnel Record pg.25; see January 2024 Hearing Transcript.

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion.

All opinions must be supported by a sufficient rationale and not just conclusions. A negative opinion cannot be solely based on the absence of medical evidence. There are missing STRs that cannot be found. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain his/her inability to provide an opinion, identifying precisely what facts could not be determined.

No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact the disposition of his claim. 38 C.F.R. � 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).

2. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Ivan Franklin.

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


judge_norm: H M WALKER

text:
Citation Nr: 24016000
Decision Date: 04/15/24	Archive Date: 04/15/24

DOCKET NO. 19-00 919A
DATE: April 15, 2024

ORDER

Entitlement to service connection for a right knee disability as secondary to service-connected back disability is granted.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his right knee disability is secondary to his service-connected back disability.

CONCLUSION OF LAW

The criteria for service connection for a right knee disability secondary to service-connected back disability have been met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from February 1975 to February 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge during a November 2022 Board hearing.  A copy of the transcript has been associated with the file.   This matter was previously before the Board in March 2023 at which time it was remanded for additional development.  The matter has returned to the Board for adjudication.

Service Connection

Generally, establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be established on a secondary basis when a disability is shown to be proximately due to or the result of a service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995).

The Board has reviewed the entire record but will only discuss the evidence necessary to explain its decision.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence); see Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

After careful consideration of the evidence, any reasonable doubt remaining, is to be resolved in favor of the Veteran.  38 U.S.C. � 5107; 38 C.F.R. �� 3.102, 4.3.  If the evidence is not in approximate balance or nearly equal, the claim is to be denied.  The United States Court of Appeals for the Federal Circuit clarified in Lynch v. McDonough that the proper standard of review is whether the factors are in an "approximate balance."  Lynch v. McDonough, 999 F.3d 1391 (2021).  Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance or "nearly equal" and does not require the evidence to be in exact equipoise.  Id.

Entitlement to service connection for a right knee disability as secondary to service-connected back disability is granted.

The Veteran contends his right knee disability had onset in service or is secondary to his service-connected back disability.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that granting reasonable doubt to the Veteran, his right knee disability was aggravated by pain associated with his service-connected back disability.

As the Board is granting service connection on a secondary basis, analysis of his claim under other theories, such as direct service connection, are not warranted.  Even so, there is no persuasive and competent evidence linking the current right knee disability to the in-service treatment for right knee complaints.

The Veteran has been diagnosed with right knee degenerative arthritis, popliteal cyst, medial femoral condylar chondromalacia, and meniscal tear.  See September 2023 VA examination.  Accordingly, the Board finds that the first element of secondary service connection is established.

The record also reflects that the Veteran is service connected for degenerative arthritis of the thoracolumbar spine (back disability).  Thus, the second element of secondary service connection is established.   The remaining question is whether there is a nexus, or link, between the Veteran's service-connected back disability and his right knee disability.

In October 2023, following a review of the medical records and an examination of the Veteran, a VA examiner opined that his right knee disability was at least as likely as not aggravated by his service-connected back disability.  In support, the examiner found that his service-connected back disability causes low back pain and other joint pain may directly cause increased knee pain due to the biomechanical interrelationship of joints.  Back pain with bending, lifting, and other activities can cause poor posture, adding stress to the knees.   The Board finds the October 2023 VA opinion to be competent, credible, and probative.  The examiner provided a clear explanation that contains a clear conclusion and supporting data.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board acknowledges the June 2016, January 2017, and October 2018 VA negative nexus opinions; however, the Board has previously found these opinions inadequate and thus will not be discussed herein.  Likewise, the Board acknowledges the December 2016 and November 2022 positive nexus statements from his private physician that opined his right knee disability was likely secondary to his back disability, however, the Board has previously found these opinions insufficient as no supporting rationale was provided.

Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran's right knee disability is secondary to his service-connected back disability.  Accordingly, service connection on a secondary basis is granted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Krista Johnson, Associate Counsel

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


judge_norm: J KIRBY

condition: respiratory

text:
Citation Nr: 24017000
Decision Date: 04/19/24	Archive Date: 04/19/24

DOCKET NO. 20-23 557
DATE: April 19, 2024

REMANDED

Entitlement to service connection for chronic obstructive pulmonary disease (COPD) on an accrued basis is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1970 to February 1972, including service in the Republic of Vietnam.  The Veteran died in March 2016; the appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office, which serves as the agency of original jurisdiction (AOJ) in this case.

Entitlement to service connection for COPD on an accrued basis.

To establish service connection, the evidence must show (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. � 3.303(d).

The law also establishes a presumption of entitlement to service connection for certain disorders if exposed to certain herbicide agents. See 38 U.S.C. � 1116; 38 C.F.R. �� 3.307(a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. � 3.309(e), if manifested to a compensable degree at any time after active service. 38 U.S.C. � 1116(a)(1); 38 C.F.R. � 3.307(a)(6)(ii). Additionally, that a disability is not presumptively related to service is not a bar to establishing an actual or direct connection. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Neither is it a rationale for concluding that a causal connection does not exist in a specific case.

The Veteran served in the Republic of Vietnam, and his exposure to herbicide agents is conceded. The appellant contends that the late Veteran's COPD was the result of that exposure to herbicide agents, in addition to exposure to various other toxic substances in service such as organic fumes, dusts, oxidants, irritants, and tear gas, as well as his work as a cook and kitchen supervisor in Vietnam. See August 2015 Notice of Disagreement.

Notwithstanding the Veteran's assertions, it appears that he was never provided a medical examination or nexus opinion during his lifetime.

VA is required to provide a medical examination or opinion "if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim" and (1) the record contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of disease; (2) the evidence establishes that the veteran suffered an in-service event, injury or disease; (3) and the evidence indicates that the claimed disability or symptoms may be associated with the established in-service event, injury or disease or with another service-connected disability.  McLendon v. Nicholson, 20 Vet. App. 79, 85-6 (2006); see also 38 U.S.C. � 5103A (d)(2), 38 C.F.R. � 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.

Here, the nature of the Veteran's duties in "service, coupled with the currently diagnosed COPD, tend to suggest that a nexus may exist between them. The requirements of McLendon were satisfied, and an examination was required under 38 C.F.R. � 3.159.

In addition, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act was signed into law on August 10, 2022. Pub. L. 117-168, � 303, 38 U.S.C. � 1168(a). The PACT Act created 38 U.S.C. � 1168(a) setting forth criteria for when VA has a duty to assist in obtaining a medical nexus examination for veterans with qualifying toxic exposure risk activities. Under this statute:

[I]f a veteran submits to the Secretary a claim for compensation for a service-connected disability under section 1110 of this title with evidence of a disability and evidence of participation in a toxic exposure risk activity during active military, naval, air, or space service, and such evidence is not sufficient to establish a service connection for the disability, the Secretary shall

(A) provide the veteran with a medical examination under section 5103A(d) of this title; and

(B) obtain a medical opinion (to be requested by the Secretary in connection with the medical examination under subparagraph (A)) as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity.

38 U.S.C. � 1168(a)(1).

The health care provider [providing the medical nexus opinion] shall consider:

(A) the total potential exposure through all applicable military deployments of the veteran; and

(B) the synergistic, combined effect of all toxic exposure risk activities of the veteran.

38 U.S.C. � 1168(a)(2).

The provisions of the PACT Act are applicable to the appellant's claim; as such, the Board must remand to obtain an opinion pursuant to 38 U.S.C. � 1168. The Board acknowledges that since the Veteran is deceased it will only be possible to obtain a medical opinion. Accordingly, the Board asks that a medical opinion be obtained compliant with the requirements of 38 U.S.C. � 1168. The Board notes that the Veteran served in the Republic of Vietnam and claims exposure to various airborne and other toxins while in service.

The matters are REMANDED for the following action:

1. Complete any necessary development with respect to toxic exposures in service.

2. Forward the Veteran's claim file for an opinion by an appropriate VA clinician. The clinician is requested to carefully review the claim file, to include this Remand order.

3.  The clinician should opine:

a.) whether the Veteran's diagnosed COPD or other respiratory disability identified was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) related to his military service, to include his conceded exposure to herbicide agents, or to organic fumes, dusts, oxidants, irritants and tear gas, and any other toxic agents discovered through development.

b.) Whether it is it at least as likely as not that such was due to the synergistic, combined effect of all toxic exposure risk activities.

4. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term "as likely as not" means the likelihood is at least approximately balanced or nearly equal, if not higher.

5. In providing the opinion, the examiner must consider and address medical and hospital records dated 2010 to 2013, including a September 2010 medical note reporting that the Veteran's respiratory difficulties, including shortness of breath, dated back to the 1970s.

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6. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the appellant's claim cannot be provided without resorting to speculation, the VA clinician is requested to provide an explanation as to why this is so and to clarify what additional development would permit the requested opinion to be rendered.

7. After completing the foregoing and any other development necessary, adjudicate the appellant's claim for service connection for COPD on an accrued basis.

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Carson, M.

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