judge_norm: S L KENNEDY

condition: psychiatric

text:
Citation Nr: 1703000
Decision Date: 02/02/17    Archive Date: 02/15/17

DOCKET NO.  10-39 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Nashville, Tennessee

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel

INTRODUCTION

The Veteran had active service from January 2003 to June 2003, July 2004 to March 2005 and June 2007 to June 2008, with additional reserve service.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision by the RO in Nashville, Tennessee that denied service connection for generalized anxiety disorder, bilateral pes planus, left ankle pain, bilateral hand pain, left knee pain, back pain, gastroesophageal reflux disease (GERD), and chronic fatigue syndrome (CFS), and granted service connection for treatment purposes only for a mental condition under 38 U.S.C. Chapter 17.  The Veteran perfected appeals for service connection for generalized anxiety disorder, right pes planus, bilateral hand pain, a left knee disability, back pain (lumbago), GERD, and CFS.

In July 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for additional development.

In a March 2015 rating decision, the AOJ granted service connection for CFS (60 percent disabling), bilateral pes planus (30 percent disabling), irritable bowel syndrome with GERD (30 percent disabling), degenerative joint disease of the lumbar spine (10 percent disabling), left knee strain (10 percent disabling), and bilateral hand strain (0 percent disabling), with each rating effective June 11, 2008.
Since the Veteran did not appeal the ratings or effective dates assigned in these decisions, these claims are not in dispute.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from his initial claim for service connection).  These issues are no longer in appellate status, as the initial service connection claims were granted.  The only issue remaining on appeal is listed on the first page of this decision.

Although the Veteran told the October 2014 VA examiner that he was no longer interested in service connection for his claimed mental condition, he has not explicitly withdrawn this claim (see 38 C.F.R. � 20.204), and did not respond to the AOJ's January 2015 letter regarding a potential withdrawal of this claim.  Moreover, his representative presented additional argument in a June 2016 written brief.  Thus, the Board will proceed with adjudication of this claim.

FINDING OF FACT

There is an approximate balance of evidence for and against the claim as to whether the Veteran's generalized anxiety disorder was incurred during his military service.

CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, the Veteran's generalized anxiety disorder was incurred during active service.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2016).  In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the fully favorable nature of the Board's decision.

Service Connection

The Veteran contends that he has or had an acquired psychiatric disorder, to include generalized anxiety, that was incurred in service, and which he describes as anger caused by being in Iraq, and anxiety.  See his March 2009 claim and November 2009 notice of disagreement.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303 (2016).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. � 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in � 3.309(a) may be considered for service connection under 38 C.F.R. � 3.303(b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. � 3.303(d).

A Veteran is presumed in sound condition when examined and accepted for service, except for defects or disorders noted at entrance to service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  38 U.S.C.A. � 1111; 38 C.F.R. � 3.304(b).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. � 3.304(b).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such diseases during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. �� 3.307, 3.309 (2016).

Service connection may only be awarded to an applicant who has disability existing on the date of application, not for past disability.  Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); but see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

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

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A review of the evidence reflects that even though the October 2014 VA examiner diagnosed history of adjustment disorder/anxiety disorder not otherwise specified (NOS)/generalized anxiety disorder, other competent evidence shows that the Veteran has been diagnosed with generalized anxiety disorder and anxiety during the pendency of the appeal.  See April 2009 VA examination report and VA outpatient treatment records).  Consequently, the determinative issue is whether or not this acquired psychiatric disorder is attributable to his military service.  See McClain, supra; Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service.").

The Veteran had active service in the U.S. Marine Corps Reserve from January 2003 to June 2003, July 2004 to March 2005 and June 2007 to June 2008, with additional reserve service.  His military occupational specialty was field artillery cannoneer.  During his last period of active service, he received the Combat Action Ribbon and Iraq Campaign Medal, among other awards.

Service treatment records are negative for a treatment or diagnosis of a psychiatric disorder.  In a November 2005 annual certificate of physical condition, when asked if he had any physical defects, family, or mental problems, the Veteran reported that his only current condition was a low back disability.  The examiner found no current disability.

VA outpatient treatment records dated prior to the Veteran's 2007-2008 period of active service include a December 2006 primary care note which reflects that the Veteran complained of abdominal pain, and the examiner noted that he was anxious.  A psychiatric disorder was not diagnosed.  A January 2007 VA social work note reflects that the Veteran reportedly served in Iraq from September 2004 to March 2005 at an air base, but was not in combat.

On Persian Gulf Registry examination in January 2007, the Veteran reported that he served in combat.  He denied significant mood changes, depression, cognitive difficulties, and hallucinations.  He reported anger and irritability.  On examination, mood and affect were appropriate, and he was oriented times three.  A posttraumatic stress disorder (PTSD) screening was positive, but a psychiatric disorder was not diagnosed.  A VA outpatient treatment record dated in March 2007 reflects that the Veteran complained of stress from an anticipated deployment.

Service treatment records show that in a March 2008 post-deployment health assessment, the Veteran reported that he had irritability, headaches, and sleep problems after events in service.  In a March 2008 report of medical history, the Veteran reported a history of nervous trouble, loss of memory or neurological symptoms, frequent trouble sleeping, and depression or excessive worry.  A March 2008 report of medical examination reflects that the Veteran's psychiatric system was not examined.  A March 2008 separation physical examination indicated that he was found physically qualified for separation, and no disqualifying medical conditions were noted.

A post-service August 2008 VA emergency room treatment note reflects that the Veteran reported that he had anger problems since returning home from Iraq.  The pertinent diagnostic assessment was anxiety disorder.  An August 2008 psychiatry note reflects that the Veteran complained of stomach pain, increasing anxiety, and anger issues.  He said he had just returned from his second combat tour of duty in Iraq in May 2008, and he had symptoms of anxiety which turned into anger for a long time, but he was only now seeking help.  After an examination, the psychiatrist diagnosed anxiety disorder NOS.  A November 2008 VA psychiatry consult reflects that the Veteran had been referred for anxiety disorder.  The Veteran reported that he had some degree of anxiety after he came back from Iraq in May 2008.  The Axis I diagnosis was anxiety disorder NOS, resolving.

In his March 2009 claim, the Veteran said that his psychiatric disorder, manifested by anger and anxiety, began in January 2007.

On VA examination in April 2009, the examiner noted that the Veteran had combat experience during his service in Iraq.  The Veteran stated that he had recently moved, was working as a corrections officer, and was anxious all the time.  The examiner noted that the Veteran had been diagnosed with anxiety disorder NOS at a VA facility.  After a psychiatric examination, the examiner diagnosed generalized anxiety disorder, but did not provide an opinion as to the etiology of this disorder.

By a letter dated in April 2009, the Veteran's spouse asserted that the Veteran's personality had changed since he returned from his first deployment in 2005, and that he was often angry.  She stated that after returning from his most recent deployment in 2008, he was very anxious, in addition to his anger.

Subsequent VA outpatient treatment records reflect treatment for anxiety and anxiety disorder NOS.  An October 2009 psychiatry consult reflects that the Veteran requested a refill of his prescription for Xanax.  He reported irritability and a short temper at times.  The examiner noted that he had a history of mild anxiety problems.  The Axis I diagnosis was adjustment disorder (post-deployment adjustment with irritability and anxiety).  A March 2010 mental hygiene clinic note reflects that the Veteran had previously been diagnosed with anxiety disorder and adjustment disorder with anxious mood in lieu of a diagnosis of a PTSD-spectrum disorder.  His first contact with VA psychiatry service was in August 2008.  Since then, he had sporadic psychiatric treatment with maintenance on low-dose alprazolam.  The Veteran complained of continuing symptoms of having great difficulty relaxing, and persistent mood instability in that he always felt angry, had low frustration tolerance, and experienced racing thoughts.  After a mental status examination, the examiner diagnosed adjustment reaction with anxious mood, rule out mood disorder NOS, rule out PTSD.

An April 2010 psychiatry note reflects that the examiner observed that the Veteran presented a complicated case in that he was evaluated for anxiety by a physician, and also on compensation and pension examinations, and the findings were anxiety disorder or adjustment disorder.  The examiner noted that the Veteran currently insisted that he has PTSD despite these previous findings.  He noted that the Veteran was also taking a health class and studying psychiatric disorders.  He expressed anger regarding his sense of being deployed to Iraq twice, and felt dismissed and underappreciated after his service.  He denied nightmares and flashbacks.  He wanted help dealing with the anger, and said that others did not see the danger he had been through or the near misses he had with gunfire, RPGs, and IED blasts.  He said his recollections did not impair him at work or school.  A psychological evaluation was planned.  A June 2010 consult reflects that the Veteran had anger issues stemming from his return from deployment, and that his symptoms were more reflective of devaluation on return, and frustration that he would not be taken care of by the VA system or that he would be denied care by being seen as one of the VA or military's own.  In May 2010, he was diagnosed with dysthymia, rule out IED.  An August 2010 psychology assessment was performed, and the Veteran stated that his symptoms of depression and anxiety worsened after he returned from his second tour in April 2008.  The diagnosis was adjustment disorder with mixed mood.

In September 2011, a VA psychiatrist diagnosed alcohol abuse in early remission, anxiety disorder NOS, rule out dysthymia, rule out cyclothymia.  A March 2012 nursing telephone note reflects that the Veteran reported that he had anxiety for six years.  A May 2012 VA psychiatry note reflects that the Veteran complained of anxiety and depressive symptoms.  The examiner noted that with regard to anxiety, the Veteran stated that he "has always been this way." The Axis I diagnoses were alcohol abuse in early remission, anxiety disorder NOS, rule out dysthymia, rule out cyclothymia.  The same diagnoses were indicated in a June 2012 psychiatry note.

At an October 2014 VA mental disorders compensation examination, the examiner indicated a diagnosis of history of adjustment disorder/anxiety disorder not otherwise specified (NOS)/generalized anxiety disorder.  At this examination, the Veteran told the examiner that he was no longer interested in service connection for his claimed mental condition.  He denied experiencing symptoms of, or impairment associated with this condition at the present time.  The examiner indicated that there was no current mental disorder diagnosis.  She indicated that the claims file was reviewed, and summarized relevant records.  She did not provide a nexus opinion regarding the previously diagnosed psychiatric diagnoses.

The VA examiner noted that the Veteran had received a Combat Action Ribbon, and as such, it could be presumed that he was exposed to significant combat during his deployments, thereby putting him at increased risk for experiencing combat-related mental health problems.  The examiner noted that the Veteran was currently employed in law enforcement, denied experiencing occupational problems at the present time, and expressed concern that getting service connected for a mental health condition might eventually harm his law enforcement career.  Moreover, he conceded that he was not in need of compensation given that he was gainfully employed.
The examiner noted that the Veteran had a documented history of receiving VA mental healthcare from 2008-2012, and his providers repeatedly documented that his mental health condition (diagnosed in different ways but was the same condition regardless of the diagnosis) was related to combat stress.  He denied experiencing significant mental health symptoms at the present time and stated that he is no longer interested in getting service connected for a combat-related mental health condition.  However, he expressed anger that his initial claim for a combat-related mental health condition was denied in 2009 because it was then that he needed service-connected benefits, not now.  He requested that the examiner submit her record review to document that he experienced combat-related mental health problems from 2008-2012.  The examiner summarized pertinent records and noted that the Veteran had been lost to follow up by VA psychiatry/mental health providers since June 2012.

The Board finds that the evidence is in relative equipoise as to whether the current generalized anxiety disorder was incurred during service.  In consideration of the competent and credible statements by the Veteran and his wife regarding his symptoms, the findings by the VA mental health providers and the VA examiners, and resolving all reasonable doubt in his favor, the Board finds that service connection is warranted.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. � 5107 (b); 38 C.F.R. � 3.102.  An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology; this need only be an as likely as not proposition, which in this instance it is.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

ORDER

Service connection for generalized anxiety disorder is granted.

______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: MARK D HINDIN

disposition: dismissed

condition: hypertension

disposition: granted

condition: back

text:
Citation Nr: 1706000
Decision Date: 02/28/17    Archive Date: 03/03/17

DOCKET NO.  09-17 809	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for hypertension, including as secondary to service-connected type II diabetes mellitus.

2.  Entitlement to service connection for low back disability (claimed as back pain).

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs

WITNESS AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

H. Papavizas, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1970 to May 1971, including combat duty in the Republic of Vietnam.  He received the Combat Infantryman Badge and Air Medal, among other decorations.

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied entitlement to service connection for low back, eye and skin disabilities as well as hypertension.

The Veteran appeared at a hearing at the RO in July 2014 before the undersigned.  A transcript is associated with the claims file.

In March 2015, the Board denied service connection for eye and a skin disorders and remanded the remaining issues on appeal for further development.

In February 2016, the RO granted service connection for hypertension with a noncompensable rating, effective May 18, 2007.

FINDINGS OF FACT

1.  Prior to the promulgation of a decision in the appeal, the Board received notification that the Veteran's claim for service connection for hypertension was granted in full, which he has not disputed.

2.  The Veteran's current back disability is the result of an in-service injury.

CONCLUSIONSOF LAW

1.  The criteria for dismissal of an appeal of the Veteran's claim for service connection for hypertension have been met. 38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015)

2.  The criteria for service connection for a low back disability have been met.  38 U.S.C.A. � 1110, 1154 (West 2016); 38 C.F.R. � 3.303, 3.304 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Hypertension

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2016).

Prior to the promulgation of a decision in this appeal and after certification of the appeal of this issue to the Board, the AOJ awarded service connection for hypertension to the Veteran in March 2015, assigning an initial noncompensable evaluation, effective May 18, 2007.

The award constitutes a full grant of the benefits sought on appeal.  As such, and since the Veteran has not yet expressed any disagreement with the March 2015 rating action, this issue is no longer before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).  Because there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed.

Low Back

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

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms).

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

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

Where, a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service.  38 U.S.C.A. � 1154(b) (West 201).

Evidence of a current disability and of a nexus between service and a current disability is still required.  Wade v. West, 11 Vet. App. 302 (1998).  VA is; however, required to presume that a Veteran's report of permanent disability arising at the time of the combat injury is correct.  Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012).

The Veteran has provided testimony that he experienced a combat related back injury and has continued to experience symptoms since that injury.  The injury occurred when a helicopter he was riding in was struck by enemy fire and he was forced to jump to the ground.  Service treatment records do not show this injury, but a medical board report dated in March 1971 shows he was in "a great deal of combat;" and a report of medical history completed for the medical board in January 1971, includes a notation of "back trouble in Vietnam."  The Veteran reportedly saw an orthopedist who diagnosed hyperlordosis.

The Veteran also testified that he had continued to have back pain since the combat injury and had back surgery shortly after his return from service in 1971.  The Veteran did not mention a back disability in his initial claim for VA benefits in 1971

VA examiners have provided negative nexus opinions with regard to the claimed back disability; but they did not consider the presumptions required by 38 U.S.C.A. � 1154(b) (West 2014).

In March 2015, the Board remanded the appeal to, inter alia, obtain another VA opinion because the last December 2011 VA examiner rendered a negative opinion concerning the relationship between the Veteran's low back disability (diagnoses include lumbar spondylosis and lumbar degenerative disc disease) and his military service without apparently having fully considered the Veteran's account of an in-service low back injury during combat.  In February 2016, a new VA medical opinion was obtained which included another negative opinion.  Although the VA examiner was instructed to presume that the in-service back injury reported by the Veteran actually occurred and that the absence of documented medical treatment, alone, is not a sufficient basis for a negative nexus opinion, the examiner rendered a negative nexus opinion, explaining that the "[Board's instruction] notwithstanding, a medical opinion must be based upon some direct and/or circumstantial 'medical' evidence of which, in this review, there is none, nor is there evidence of chronicity of a back condition after service until the Veteran's claim for this condition 36 years after service."

The Veteran has a current low back disability as evidenced by the diagnoses of lumbar degenerative disc disease and lumbar myofascial strain on an examination for VA in December 2011.  There is not sufficient evidence to rebut the presumption that the Veteran sustained a combat injury to the lumbar spine in service.  The incurrence of the in-service injury is therefore established.

While the most recent VA medical opinion is against a relationship between the current back disability and the in-service injury; this was based on the application by the examiner of an incorrect legal standard.  The opinion can be read as saying that if the incurrence of the in-service injury and the continuity of symptomatology had been accepted; a nexus would have been found.  Given the opinions and the presumptions required by the Federal Circuit in Reeves, a nexus to service is established.  The elements of service connection have been demonstrated and the appeal is granted.

ORDER

The appeal of the Veteran's claim for service connection for hypertension is dismissed.

Service connection for a low back disability is granted.

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL E KILCOYNE

disposition: remanded

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

text:
Citation Nr: 1707000
Decision Date: 03/07/17    Archive Date: 03/16/17

DOCKET NO.  13-22 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUE

Entitlement to service connection for a right ankle disability.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

R. Dodd, Counsel

INTRODUCTION

The Veteran had active service from November 1976 to March 1984.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The claims file was subsequently transferred to the RO in Buffalo, New York.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in May 2015; a transcript of the hearing is associated with the claims file.

In February 2016, this claim was previously before the Board at which time it denied entitlement to the issue on appeal.  The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In October 2016, the Board's decision was vacated pursuant to a Joint Motion for Remand (Joint Motion).  As such, this claim is once again before the Board.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The Joint Motion essentially directs the Board to obtain another medical opinion to address whether the in-service injury described by the Veteran (a parachuting injury) bore a relationship to the Veteran's current ankle disability.  The current opinion apparently did not include consideration of that fact since the examiner found no record of such an injury.  Accordingly, the claims file should be returned to the April 2014 VA examiner so that he may render an opinion in which the in-service parachuting injury described by the Veteran is taken as a conceded fact.  A complete rationale for any opinions must be provided.

In addition to the forgoing, any additional relevant records the Veteran identifies should be sought.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to identify any additional relevant records he wants considered in connection with his appeal.  The identified records should be sought.

2. After any additional evidence has been associated with the claims file, return the Veteran's claims file to the VA examiner who conducted the April 2014 VA examination.  If that examiner is no longer available, then the Veteran's claims file should be forwarded to an appropriate person of like skill and qualification. The entire claims file should be reviewed by the examiner.

Following a complete review of the record, the examiner should set out the relationship between the Veteran's right ankle disability and his in-service parachuting injury.  Specifically the examiner should address whether the Veteran's current right ankle disability is at least as likely as not caused by or due to his in-service parachuting injury, as the Veteran has described it.

In addressing these issues, the examiner should consider the in-service parachuting injury described by the Veteran to be conceded.

The examiner should provide an explanation for all elements of his/her opinion.  If it is not possible to provide the requested opinion, the reasons for that should be set forth.

3. After completing the above action, the claim should be re-adjudicated. If it remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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

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

_________________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2015).


judge_norm: K J ALIBRANDO

judge_role: Veterans Law Judge

disposition: denied

condition: knee

text: A TDIU is denied.

text:
Citation Nr: 1708000
Decision Date: 03/16/17    Archive Date: 04/03/17

DOCKET NO.  10-06 454	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1.  Entitlement to a rating in excess of 10 percent prior to October 27, 2013, and in excess of 60 percent after December 1, 2015, for a right knee disability.

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

(The issues of entitlement to service connection for an acquired psychiatric disorder and whether new and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus will be addressed in a separate decision.)

REPRESENTATION

Veteran represented by:	Jeffrey Bunten, Attorney

WITNESSES AT HEARINGS ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

T. Berryman, Associate Counsel

INTRODUCTION

The Veteran had active service in the Army from July 1975 to January 1976 and form March 1977 to November 1977.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In connection with this appeal, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Scharnberger in March 2011.  A transcript of that hearing is of record.

In June 2011, the Board denied a rating in excess of 10 percent for the Veteran's right knee.  The Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court").  In November 2011, the Court issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Remand (JMR) which directed the Veteran to consider whether the Veteran had instability in his right knee.  In response, the Board remanded the Veteran's claim in 2012 for a VA examination.

The RO granted a temporary evaluation of 100 percent for the Veteran's right knee disability from July 20, 2007 to October 1, 2007 and from October 28, 2013 to December 1, 2014 and a 30 percent rating from December 1, 2014 onward in an April 2014 rating decision.  However, because this staged increase did not constitute a full grant of the benefits sought for the entire appeal period and the Veteran has not indicated he is satisfied or content with the staged rating, the granting of this higher rating did not abrogate his pending appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

In January 2016, based on the Veteran's testimony that his right knee had worsened, the Board remanded the Veteran's claim for an additional VA examination.  Subsequently, the RO assigned a 60 percent rating for the Veteran's right knee disability following the convalescent period after his total knee replacement surgery.

The Veteran testified at a hearing before the VLJ Blackwelder in June 2015.  A transcript of that hearing is of record.

Generally, VLJs who conduct hearings must participate in making the final determination of the claim involved.  38 U.S.C. � 7107(c); 38 C.F.R. � 20.707.  By law, appeals can be assigned only to an individual VLJ or to a panel of not less than three members.  See 38 U.S.C.A. � 7102(a).  Thus, when a Veteran has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review.  The Court has interpreted 38 C.F.R. � 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision.  Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011).  In an October 2015 letter, the Veteran was offered the opportunity of a hearing before the third member of the decision panel.  The Veteran responded in November 2015 that he waived his right to appear at before a third Veteran's Law Judge.  Therefore, the Board finds that there is no hearing request pending at this time and the Board has complied with the requirements set forth in Arneson.  See id; 38 C.F.R. � 20.700(a).

In January 2016, the Board remanded the Veteran's claim for further development.  The Board is satisfied that there was at the very least substantial compliance with its remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-157 (1999).
FINDINGS OF FACT

1.  Prior to October 27, 2013, the Veteran's right knee disability did not result in flexion functionally limited to 30 degrees or extension functionally limited to 10 degrees; and, there was no evidence of ankylosis, dislocated semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum.

2.  Prior to October 27, 2013, slight instability was shown.

3.  As of December 1, 2014, the Veteran's right knee disability was shown to result in chronic residuals consisting of severe painful motion or weakness, which is the maximum schedular rating that may be assigned.

4.  The Veteran's service connected right knee disability does not prevent him from obtaining or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1.  The criteria for an orthopedic evaluation in excess of 10 percent prior to October 27, 2013, and in excess of 60 percent after December 1, 2014, for a right knee disability have not been met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. � 4.71a, Diagnostic Codes 5256-5263, 5055 (2016).

2.  The criteria for a 10 percent rating for right knee instability were met prior to October 27, 2013.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. � 4.71a, Diagnostic Code 5257 (2016).

3.  The criteria for a TDIU are not met. 38 U.S.C.A �� 5103A , 5107 (West 2014); 38 C.F.R. �� 3.340 , 3.341, 4.16 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. �� 5102, 5103, 5103A, 5107; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of the claim at this time is warranted.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained.  Additionally, the Veteran testified before the Board in March 2011 and June 2015.

The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disability on appeal.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Moreover, neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011).

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. � 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. � 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. � 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. � 4.7.

The primary concern for an increased rating for a service-connected disability is the present level of disability.  Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

Under Diagnostic Code 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability.

Under Diagnostic Code 5260, a 10 percent rating is assigned for flexion of the leg limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees.

Under Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating is assigned for extension limited to 20 degrees, a 40 percent rating is assigned for extension limited to 30 degrees, and a 50 percent rating is assigned for extension limited to 45 degrees.

In addition, separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension), both currently codified under 38 C.F.R. � 4.71a, may be assigned for disability of the same joint.  See VAOPGCPREC 9-04 (2004).

Standard range of knee motion is from 0 degrees (extension) to 140 degrees (flexion).  38 C.F.R. � 4.71, Plate II.

Under Diagnostic Code 5055 (knee replacement), a 30 percent rating is assigned for a prosthetic replacement of a knee joint that results in an intermediate degrees of residual weakness, pain or limitation of motion, a 60 percent rating is assigned for a prosthetic replacement of a knee joint that results in severe painful motion or weakness, and a 100 percent rating may be assigned for one year following implantation of prosthesis.

Regarding ankylosis of a knee, a meniscus condition, a tibia and fibula impairment, and genu recurvatum, none of these conditions have been demonstrated by the record, nor has the Veteran asserted their presence.  As such, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not applicable, and as such, will not be discussed further.

The Veteran filed a claim for a temporary 100 percent rating on July 23, 2007.  An October 2007 rating decision granted a temporary 100 percent rating from July 20, 2007, through November 30, 2007.  He filed a claim for a rating in excess of 10 percent on March 21, 2008, which was denied in a December 2008 rating decision.  In June 2012, the Board remanded the claim for further development to comply with the CAVC JMR.  In April 2014, the RO granted another temporary 100 percent rating from October 28, 2013, to November 30, 2014, and then assigned a 30 percent rating beginning on December 1, 2014 (following the cessation of his post-total knee replacement surgery convalescent period).  The 30 percent rating was subsequently increased to 60 percent.  The Veteran asserts that he is entitled to higher ratings outside the periods in which the temporary 100 percent ratings were assigned.

In November 2008, the Veteran was afforded a VA examination.  He reported having pain, weakness, stiffness, instability, giving away, locking, fatigability, and lack of endurance.  He also reported that he had recurrent subluxation and his knee pops.  On examination, he had no right knee ankylosis.  The Veteran demonstrated right knee flexion to 100 degrees with pain beginning at 30 degrees, and full extension 0 degrees.  He had normal medial collateral, lateral collateral and anterior cruciate ligament testing and normal meniscus findings.  The examiner indicated that the Veteran had pain, fatigue, weakness, lack of inductance, incoordination, painful motion, effusion, instability, weakness, tenderness, and guarding of movement.  A right knee x-ray was normal.

In March 2009, the Veteran was experiencing back pain when he got up out of bed his knees buckled and he fell.

The Veteran's medical records show that in June 2009, his right knee had no swelling, effusion, or laxity.  In August 2009, the Veteran demonstrated flexion to 125 degrees and extension to 0 degrees.  His right knee was tender and he complained of significant pain, but he had no effusion.  The Veteran was stable to varus/valgus.  In January 2010, he continued to have tenderness, but no effusion or instability.

In January 2010, the Veteran was afforded a VA examination.  He reported having pain and used a cane, walker, and wheelchair.  He denied any locking, but had swelling during flare-ups.  On examination, he demonstrated right knee flexion of 97 degrees and extension to 4 degrees.  On repetitive testing, he had pain, stiffness, fatigability, and weakness, but no incoordination or additional limitation of motion.  While he complained of pain on varus stressing, he did not have true laxity.  He had meniscus pain.  A right knee x-ray was normal.

At the March 2011 hearing, the Veteran testified that he used a cane for about three years due to problems walking and knee giving out.  He testified that he had medications and injections for his knee pain, but these did not help.

In August 2011, the Veteran demonstrated right knee flexion to 100 degrees.  In September 2011, he demonstrated flexion to 120 degrees.  In November 2011, he demonstrated flexion to 95 degrees.  In December 2011, he had flexion to 110 degrees.  In July 2012, he reported that his right knee popped and was painful afterwards.  In November 2012 and January 2013, he had flexion to 130 degrees, but his right knee gave away with normal resistance.

At the June 2015 hearing, the Veteran testified that he had undergone a total right knee replacement.  He testified that he was unable to stand or sit too long due to swelling, stiffness, and pain.  He testified that he used a cane and falls about once per month.  He testified that his right knee would give out prior to undergoing surgery.

In March 2016, the Veteran was afforded a VA examination.  He reported that any prolonged activity such as standing, walking, or climbing stairs causes increased discomfort and decreased ambulation.  On examination, he had right knee flexion to 80 degrees and extension to 10 degrees.  Repetitive testing resulted in no additional functional loss or range of motion.  He had 4/5 right knee strength with no muscle atrophy.  He had no right knee ankylosis.  He had no right knee subluxation, instability, effusion, patellar dislocation, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, any tibial and/or fibular impairment, or any meniscus condition.  He was unable to perform joint stability tests due to discomfort.

Treatment records prior to October 27, 2013, show that the Veteran treated for right knee pain.  However, while he had pain, he retained flexion to greater than 95 degrees and extension was at most limited to 4 degrees during this period.

In view of the above, the criteria to assign a rating in excess of 10 percent for the Veteran's right knee disability prior to October 27, 2013, have not been met.  He did not demonstrate limitation of flexion of the knee to 45 degrees or limitation of extension to 10 degrees.  As such, there is also no basis to assign separate compensable ratings under Diagnostic Code 5260 and 5261.

With respect to possibility of entitlement to an increased evaluations under 38 C.F.R. �� 4.40, 4.45, and 4.59, the Board has considered whether increased evaluations could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain.  Repeated range of motion exercises did not result in any changes of his right knee range of motion findings prior to October 27, 2013.  Although the Veteran's complaints of pain have been considered, pain alone does not constitute a functional loss under VA regulations.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  In this case, when the findings are considered together with the evidence, the Board finds that there is insufficient evidence of any other functional loss besides limitations in physical activities and decreased range of motion that warrants ratings in excess of those assigned for a right knee disability prior to October 27, 2013.  38 C.F.R. �� 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

The November 2011 CAVC JMR directed the Board to analyze the relevant evidence regarding the Veteran's instability and subluxation.  At the November 2008 VA examination, the Veteran reported right knee instability and giving away.  While the VA examiner noted that the Veteran had normal ligament findings, the examiner indicated that the Veteran had instability.  Treatment records from June 2009 show that he had no right knee laxity.  Treatment records from January 2010 show he had no instability.  The January 2010 VA examiner found that although he reported pain on testing, he did not have true laxity.  Treatment records from November 2012 and January 2013 show that his right knee gave away with normal resistance.  The March 2016 VA examiner indicated that the Veteran did not have a history of right knee subluxation or instability.

At the Veteran's Board hearing in 2011, his representative argued that the Veteran's need for a cane and knee brace suggested a higher rating was warranted.  The Board concurs with this assessment.  While clinical testing repeatedly concluded that the Veteran's right knee was stable on clinical testing, traumatic encephalopathy fact remains that there is evidence of the Veteran falling when his knee buckled, and the Veteran has had to use a cane and knee brace at various times.  In view of the above, the Board concludes that a separate 10 percent rating should be assigned for instability under Diagnostic Code 5257 prior to the total knee replacement surgery.

A rating in excess of 10 percent is not warranted.  While the November 2008 VA examiner indicated that the Veteran had instability, he had normal ligament findings.  Furthermore, later treatment records show he did not have instability or laxity.  The January 2010 VA examiner reported that the Veteran did not have true laxity.  Finally, while the Veteran's knee gave away with normal resistance in November 2012 and January 2013, the March 2016 VA examiner indicated that the Veteran did not have a history of subluxation of instability.  The Veteran's medical record does not demonstrate findings consistent with moderate recurrent subluxation or lateral instability.

For the period beginning on December 1, 2014, the Veteran is in receipt of 60 percent rating for the residuals of his right total knee replacement.  Such is maximum rating that may be assigned under Diagnostic Code 5055.  A higher rating is not available under this code.

In addition, under the "amputation rule" the combined rating for orthopedic disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed.  38 C.F.R. � 4.68.  An amputation at the middle or lower thigh or at or above the knee level warrants a 60 percent rating.  38 C.F.R. � 4.71a, Diagnostic Codes 5162-5164.  As the Veteran is in receipt of 60 percent rating for his right knee beginning December 1, 2014, additional compensation would be precluded under 38 C.F.R. � 4.68.

In so finding, the Board acknowledges that, while it would theoretically be possible to obtain a combined rating in excess of 60 percent, if the maximum rating for limitation of extension (50 percent under Diagnostic Code 5261) were combined with the maximum rating for limitation of flexion (30 percent under Diagnostic Code 5260) or the maximum rating for instability (30 percent under Diagnostic Code 5257).  Either combination would result in a 70 percent rating.  However, as discussed, the most recent VA examination does not show that level of disability.  Beginning December 1, 2014, the Veteran is therefore in receipt of the maximum schedular ratings for his right knee disability.

The Board has not overlooked the Veteran's statements in support of his claim.  In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. knee pain and functional loss.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Moreover, the 10 percent rating for instability was assigned largely on the Veteran's testimony and statements.  However, while the Board may consider the Veteran's subjective statements regarding the severity of his right knee disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have.  See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012).  Furthermore, the Board finds the objective medical findings of the VA examinations should be accorded the greatest probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators.").

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration.  38 C.F.R. � 3.321(b)(1).  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Court has clarified the analytical steps necessary to determine whether referral for such consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology.  If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration.

Regarding the Veteran's right knee disabilities, the evidence suggests that the symptomatology is reasonably contemplated by the schedular rating criteria discussed above.  The Veteran's right knee disabilities were applied to the applicable rating criteria, general counsel opinions, and case law.  Although the Diagnostic Codes allows for higher ratings than those assigned, the Board fully explained why higher ratings were not warranted.  Moreover, there is simply no allegation that the Veteran's right knee disabilities are unique or unusual in any way.  There is no question that the Veteran experiences symptoms from his right knee disability which include pain, less movement than normal, weakened movement, excess fatigability, swelling, instability, disturbance of locomotion, and interference with sitting, standing and weight-bearing, which results in his using a cane or walker, but such symptoms, while not specifically enumerated is considered in the schedular ratings that are assigned, as the Board is required to consider functional limiters such as pain in assessing orthopedic injuries.  See 38 C.F.R. �� 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995).

The use of a cane or walker would be expected if a person was experiencing significant pain or instability in a joint of the lower extremity.  That is, it is not a unique or unusual result of lower extremity disabilities.  It may signal that a disability is more severe when a person requires the use of a cane or a walker, but the use of the cane or a walker is required because the symptoms of the disability have increased.  Furthermore, the use of a cane or walker is not a "symptom" of the Veteran's right knee disabilities; rather, it is the result of right knee symptoms such as pain and instability.  In other words, the Veteran uses a cane or a walker because of pain and instability in his right knee, but pain and instability are symptoms that are specifically contemplated by the schedular rating criteria.  Here, there are higher schedular ratings that would take into account increased pain and/or instability.  As such, even though the Veteran uses a cane and a walker, and has trouble with sitting, standing and weight-bearing, the schedular rating criteria reasonably describe his symptomatology.

As such, the schedular rating criteria reasonably describe the symptoms caused by the Veteran's service-connected right knee disabilities on appeal, and therefore referral for consideration of an extraschedular rating is not warranted.

Accordingly, to the extent described above the Veteran's claim is granted.

TDIU

The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record.  Rice v. Shinseki, 22 Vet. App. 447  (2009).  As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377   (1994).  Here, the RO denied TDIU in January 2017.

The Veteran is clearly seeking a TDIU, and because service connection has been denied for an acquired psychiatric disability in a separate Board decision issued concurrently with this one, and because the Veteran's only compensable service connected is his right knee condition, the Board will address the TDIU claim here.

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience.  38 C.F.R. �� 3.340 , 3.341, 4.16.  Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment.

Under 38 C.F.R. �  4.16 , if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability.  If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  Id.  Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disability, and consideration is given to the Veteran's background including his or her employment and educational history.  See 38 C.F.R. �  4.16 (b).

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities.  See 38 C.F.R. �� 3.341 , 4.16, 4.19.

Here, the Veteran's right knee has been rated at 60 percent since his post-total knee replacement surgery convalescent period.  As such, he meets the schedular rating criteria for a TDIU during that time.  Prior to the surgery, the Veteran does not meet the schedular rating criteria for TDIU.  However, as will be discussed, the evidence of record does not suggest that the Veteran's right knee disability has rendered him unable to obtain or maintain substantially gainful employment at any time during the course of the appeal.

The Veteran is not currently working and has not in a number of years.  He is also collecting Social Security Administration (SSA) disability.  However, the award of SSA disability was based on a combination of major depression with psychotic features, a non-service connected condition, and substance abuse, also a non-service connected condition.  There is no mention of a right knee disability either contributing to the Veteran's inability to work or causing the major depression.

In 2013, the Veteran underwent a VA examination at which it was noted that the was retired, and thus had no current adverse occupational implications imposed from the right knee standpoint.  The Veteran was provided another VA examination to evaluate his right knee in March 2016.  The examiner stated that his current service connected right knee disability did not impact his ability to work.

There is no dispute that the Veteran's right knee disability causes impairment, but the evidence of record does not support the conclusion that the Veteran's right knee disability alone renders him unable to obtain or maintain substantially gainful employment.  The Veteran has not advanced any medical or vocational evidence to the contrary.  Accordingly, a TDIU is denied.

ORDER

An orthopedic rating (based on limitation of motion) in excess of 10 percent prior to October 27, 2013, and in excess of 60 percent after December 1, 2015, for a right knee disability is denied.

A separate 10 percent rating, prior to October 27, 2013 for right knee instability is granted, subject to the laws and regulations governing the award of monetary benefits.

A TDIU is denied.

	    MATTHEW W. BLACKWELDER               ROBERT C. SCHARNBERGER
	              Veterans Law Judge                                      Veterans Law Judge
          Board of Veterans' Appeals                         Board of Veterans' Appeals

	                         __________________________________________
K.J. ALIBRANDO
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs


judge_norm: KRISTI L GUNN

text:
Citation Nr: 1711000
Decision Date: 04/06/17    Archive Date: 04/19/17

DOCKET NO.  16-16 900	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an initial compensable rating for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

R. E. Jones, Counsel

INTRODUCTION

The Veteran served on active duty from February 1956 to February 1959.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

FINDING OF FACT

A VA audiology report shows that the Veteran has Level I hearing loss in the right ear and Level I hearing loss in the left ear.

CONCLUSION OF LAW

The criteria for an initial compensable evaluation for bilateral hearing loss are not met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 4.85, 4.86, Diagnostic Code 6100 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2016).

The Veteran's appeal arises from the Veteran's disagreement with the initial rating evaluation assigned following the grant of service connection.  In such case, the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decisions and statement of the case (SOC) have already provided the claimant with the notice of law applicable to the specific claim on appeal.  Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007).

The Veteran's VA treatment records have been obtained and he has been provided a VA audiological examination.  The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal.  The Veteran has not indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim.

In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Accordingly, the Board will address the merits of the claim.

The May 2015 rating decision on appeal granted service connection for bilateral hearing loss.  The RO assigned a noncompensable initial rating effective from October 2013.  The Veteran asserted on his July 2015 notice of disagreement that he should be granted at least a 20 percent rating for his bilateral hearing loss.

In March 2014 the Veteran reported to a VA audiologist that talking on the cell phone and watching television were his most difficult listening situations.  April 2014 VA medical records indicate that VA provided the Veteran hearing aids.

A May 2015 VA audiometric evaluation (located in the Veteran's Virtual VA electronic file) revealed right ear puretone thresholds, in decibels, of 30, 45, 60, and 75 at 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 53 decibels.  Audiometric evaluation of the left ear revealed puretone thresholds of 30, 40, 65, and 70 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, with a puretone threshold four frequency average of 51 decibels.  Speech recognition ability was 98 percent on the right and 96 percent on the left.  It was noted that the Veteran's hearing loss had no functional impact on his ordinary conditions of daily life, including ability to work.

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  38 C.F.R. � 4.85.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted by a controlled speech discrimination test together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. � 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. � 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  See 38 C.F.R. � 4.85.

The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under � 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience.  38 C.F.R. � 4.86 (a) indicates that if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation.  38 C.F.R. � 4.86 (b) indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral.  In this case, the Veteran's hearing loss does not meet these criteria and the Veteran's disability cannot be evaluated under the alternative rating scheme.

With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

The May 2015 VA audiological examination reveals that the Veteran had a puretone threshold average of 53 decibels in the right ear and 51 decibels in the left ear.  He had right ear speech discrimination of 98 percent and left ear speech discrimination of 96 percent.  Using Table VI, these findings are equivalent to Level I hearing loss in right ear and Level I hearing loss in the left ear.

Considering Table VII, when there is Level I hearing loss in both ears a noncompensable rating is the maximum rating for assignment under the schedular criteria.  38 C.F.R. � 4.87 (a), Code 6100.  Accordingly the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability.

On his April 2016 substantive appeal the Veteran reported that men he served with in his tank unit have received 30 percent evaluations for their hearing loss.  He asked why he was not awarded the same rating.  The Board notes that a veteran's rating for hearing loss depends on the audiometric testing results obtained from that veteran.  If some of the people he served with have a greater degree of hearing loss than he has exhibited, then they may be entitled to a higher rating.  As explained above, based on the hearing acuity reflected by his own audiological testing in May 2015, the Veteran is not entitled to a compensable rating for his degree of hearing loss.

The above determination is based upon consideration of applicable rating provisions.  In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. � 4.10 (2016).  The Court also noted, however, that, even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.

As previously stated, the May 2015 examiner noted that there were no effects on the Veteran's usual daily activities.  However, the Veteran has reported functional impairment throughout the pendency of his appeal as reflected in the electronic claims file.  The May 2015 examiner noted that he reviewed the Veteran's electronic claims file thereby, acknowledging the Veteran's reported functional impairment due to his service-connected bilateral hearing loss.  As this examination addressed the functional impairment of the Veteran's bilateral hearing loss, and as the Veteran has not demonstrated any prejudice caused by a deficiency in any examination, the Board reiterates that the evidence does not support a finding of an initial compensable rating.  The evidence does not show that the Veteran's bilateral hearing loss has resulted in marked interference with employment or activities of daily life.

Under 38 C.F.R � 3.321 (b)(1), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made.  Here, the rating criteria reasonably describe the Veteran's symptoms and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).

Additionally, the governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R � 3.321 (b)(1).  The record does not reflect that the Veteran has required any hospitalizations for his hearing loss or that such has markedly interfered with his employment or daily activities, beyond what is contemplated in the rating schedule.

As shown above, the disability picture for the Veteran's service-connected bilateral hearing loss has not met the criteria for a compensable rating at any time since the grant of service connection.  See Fenderson.  Therefore, an initial compensable rating for bilateral hearing loss is not warranted.

ORDER

An initial compensable evaluation for bilateral ear hearing loss is denied.

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KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs