judge_norm: T MAINELLI

disposition: granted

benefit: reduction

text:
Citation Nr: 1615000
Decision Date: 04/13/16    Archive Date: 04/26/16

DOCKET NO.  15-18 671	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania

THE ISSUE

Whether the severance of service connection for Parkinson's disease was proper.

REPRESENTATION

Veteran represented by:	Pennsylvania Department of Military and Veterans Affairs

ATTORNEY FOR THE BOARD

V. Chiappetta, Counsel

INTRODUCTION

The Veteran served on active duty from August 1945 to November 1946, and from August 1948 to January 1972.
This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 decision by a Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO severed service connection for Parkinson's disease, effective February 1, 2015.  The Veteran disagreed with this determination and perfected this appeal.  Original jurisdiction in this case is with the RO in Philadelphia, Pennsylvania.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2015).  38 U.S.C.A. � 7107(a)(2) (West 2014).

FINDINGS OF FACT

1.  In May 2006, the Veteran was diagnosed with a benign tremor of Parkinson's disease.

2.  In a July 2012 rating decision, the RO granted service connection for Parkinson's disease, effective February 9, 2011.

3.  Upon receipt of evidence suggesting that the Veteran does not have Parkinson's disease, the RO proposed to discontinue service connection for Parkinson's disease in a March 2013 rating decision.

4.  The RO implemented the severance of service connection for Parkinson's disease in a November 2014 rating decision; notice of the final rating decision was mailed in November 2014, with severance effective February 1, 2015.

5.  Severance was based on medical evidence that inadequately discussed the facts, findings, and reasons supporting a conclusion that the Veteran's initial Parkinson's disease diagnosis was clearly erroneous, as is required for severance based on a change of diagnosis under 38 C.F.R. � 3.105(d).

6.  The RO's failure to comply with the requirements set forth in 38 C.F.R. � 3.105(d) renders the severance void ab initio.
CONCLUSION OF LAW

The severance of service connection for Parkinson's disease, effective February 1, 2015, is void ab initio, and service connection for Parkinson's disease is restored. 38 U.S.C.A. �� 1110, 5112 (a) (West 2014); 38 C.F.R. �� 3.105(d), 3.303 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, �� 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. � 3.159 (2015).

As the issue of whether service connection for Parkinson's disease was properly severed is being resolved in the Veteran's favor below, a discussion here of compliance with the VCAA with regard to this appeal is not necessary.

Analysis

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 service. 38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).

Service connection based on herbicide exposure will be presumed for certain specified diseases, to include Parkinson's disease, that become manifest to a compensable degree within a specified period of time.  38 U.S.C.A. � 1116; 38 C.F.R. �� 3.307(a)(6), 3.309(e).

Once service connection has been granted, it can be severed only upon the Secretary's showing that the rating decision granting service connection is clearly and unmistakably erroneous, and only after certain procedural safeguards have been met.  38 C.F.R. � 3.105(d) (2015); see also Daniels v. Gober, 10 Vet. App. 474, 478   (1997); Graves v. Brown, 6 Vet. App. 166 (1994).  When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons.  The claimant will be notified of the contemplated action at his or her latest address of record, will be furnished detailed reasons for the contemplated action, and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained.  If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.  See 38 C.F.R. � 3.105(d) (2015).

In this case, the Veteran filed a service connection claim for tremors in his right arm and hand in March 2006.  Upon examination in July 2006, a VA examiner diagnosed the Veteran with a "benign tremor of Parkinson's" disease.  The examiner pertinently noted that since the Veteran's complaint is of a tremor of the right hand, unilateral, and at rest, "it is most probably [the] beginning of Parkinson's symptoms or a disorder of the basal ganglia which controls the involuntary movements."  See the July 2006 VA examiner's report at 2.

The RO denied the Veteran's service-connection claim in a July 2006 rating decision and the Veteran did not appeal.  Following a Federal Court mandate, VA conducted a special review of certain cases involving veterans who were exposed to herbicides during service, to include the Veteran's case, and ultimately awarded service connection for Parkinson's disease in a July 2012 rating decision on a presumptive basis, as per the provisions of 38 C.F.R. � 3.309(e).

The Veteran underwent a Parkinson's disease evaluation in August 2012.  At that time, the examiner found no diagnosis of Parkinson's disease.  Based on this change in diagnosis, the RO initiated the severance procedures outlined above.  Indeed, in a March 2013 rating decision, the RO advised the Veteran of its intent to sever service connection for Parkinson's disease on the basis of clear and unmistakable error.  The RO explained that the current medical evidence showed that the Veteran did not, in fact, have Parkinson's disease.  In an April 1, 2013 letter, the RO informed the Veteran that he had 60 days to submit additional evidence, and 30 days to request a hearing.  The RO also informed the Veteran that he could request a hearing after 30 days, but it would continue with the proposed action.

The Veteran did not submit a response or any additional evidence.  In a November 2014 rating decision, the RO determined that the earlier grant of service connection was clearly and unmistakably erroneous and severed service connection for Parkinson's disease, effective February 1, 2015.

While the procedural requirements for severance appear to have been satisfactorily completed, the Board notes that service connection will be severed only where evidence establishes that a previous grant of service connection was clearly and unmistakably erroneous, with the burden of proof being upon VA.  38 C.F.R. � 3.105(d).  CUE is defined as a very specific and rare kind of error.  It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo v. Brown, 6 Vet. App. 40 (1993).

To determine whether CUE was present in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).  CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).

There are differences in application of the standards for severance of service connection and for demonstrating CUE in a prior final VA decision.  See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006).  VA is not limited to review of the law and the record that existed at the time of the original decision in adjudicating a matter of severance of service connection-that is, the provisions of 38 C.F.R. � 3.105(d) do not limit the reviewable evidence to only that which was before the RO in making its initial service connection award.  Daniels, 10 Vet. App. at 480; see also Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997).  Further, "the severance decision focuses-not on whether the original decision was clearly erroneous - but on whether the current 'evidence establishes that [service connection] is clearly erroneous.'"  Stallworth, 20 Vet. App. at 488 (quoting 38 C.F.R. � 3.105(d)).

Importantly, a change in diagnosis may be accepted as a basis for severance action if an examining physician or physicians or other proper medical authority certifies that, in light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous.  38 C.F.R. � 3.105(d) (2015).  The certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion.  Id.

As noted above, a VA examiner diagnosed the Veteran with a benign tremor of Parkinson's disease in July 2006.  Although medical evidence of record dated subsequent to this examination, to include VA examination reports dated September 2010 and August 2012, indicates that that the Veteran does not have Parkinson's disease, no physician has specifically examined the Veteran's July 2006 diagnosis, found it to be clearly erroneous, and discussed the reasons why the initial diagnosis was in error, as is required by 38 C.F.R. � 3.105(d) prior to severance.  The medical evidence shows that as recently as September 2015, the Veteran still experienced trembling of the right upper extremity.  On September 22, 2015, VA referred the Veteran to a neurology clinic for evaluation of his tremor with concern for Parkinson's disease.  While the VA physician stated that the Veteran had none of the cardinal features of Parkinson's disease, she did not discuss how or why the Veteran's prior diagnosis was clearly erroneous, nor did she attribute the Veteran's tremor to any other disability.  See a September 22, 2015 VA Consultation Report.
In cases concerning reductions of benefits and severance of service connection, the Court of Appeals for Veterans Claims (the Court) has held that VA's failure to observe applicable law and consider all relevant evidence renders a reduction decision "void ab initio" and the Court has set them aside as "not in accordance with law."  Brown v. Brown, 5 Vet. App. 413, 422 (1993) (reversing Board's reduction of disability rating and remanding for Board to reinstate prior rating) (quoting 38 U.S.C. � 7261(a)(3)(A)); see Wilson v. West, 11 Vet.App. 383, 386-87 (1998) (applying same principle to case involving severance of service connection); see also Schafrath v. Derwinski, 1 Vet.App. 589, 596 (1991) (reversing Board's decision that rating should be reduced because the Board had failed to provide adequate statement of reasons or bases).

While it may be true that the Veteran does not currently have Parkinson's disease, once service-connection for a disability has been established, there are specific procedural steps that must be taken, and evidentiary thresholds that must be met before service-connection for such disability may be severed.  In this case, although the procedural steps appear to have been satisfactorily accomplished, on the merits, the RO relied on medical evidence that inadequately addressed the key question at issue-whether the diagnosis on which service connection was predicated is clearly erroneous.  To the extent that error is implied, the evidence still does not include adequate discussion of the facts, findings and reasons supporting this conclusion, as is required under the provisions of 38 C.F.R. � 3.105(d).  As such, the Board finds that the RO's failure to comply with the requirements set forth in 38 C.F.R. � 3.105(d) renders the severance of service-connection for Parkinson's disease void ab initio, and service connection for Parkinson's disease is restored from the date of severance.  38 U.S.C.A. �� 1110, 5112(a) (West 2014); 38 C.F.R. �� 3.105(d), 3.303 (2015).

The Board adds that the RO remains free to attempt to sever service connection again for Parkinson's disease; however, such severance must comply with all applicable law and be based upon all acquired evidence, as required by 38 C.F.R. � 3.105(d).  See Schafrath, 1 Vet.App. at 596.

ORDER

The severance of service connection for Parkinson's disease was improper, and restoration of service connection is granted.

____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

disposition: denied

condition: psychiatric

text:
Citation Nr: 1616000
Decision Date: 04/20/16    Archive Date: 04/26/16

DOCKET NO.  12-01 745	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

Entitlement to an effective date earlier than July 19, 2010, for the grant of service connection for an adjustment disorder with depression and anxiety.

REPRESENTATION

Veteran represented by:	Andrew B. Fain, Accredited Agent

ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel

INTRODUCTION

The Veteran had active duty service from July 2003 to December 2003 and from June 2006 to September 2007 in the United States Army.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  In that decision, the RO granted service connection for his psychiatric disability and assigned a 50 percent evaluation, effective from July 19, 2010.

In September 2014, the Board remanded the appeal for further development.  The case has since been returned to the Board for appellate review.

The Veteran requested a Board hearing before a Veterans Law Judge in his January 2012 substantive appeal (VA Form 9).  However, he failed to report for the hearing scheduled in March 2016.  He has not explained his absence or requested to reschedule the hearing.  Therefore, the Board hearing request is considered withdrawn.  See 38 C.F.R. � 20.704(d) (2015).

This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS).  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

FINDINGS OF FACT

1.  A formal or informal claim for service connection for a psychiatric disability was not received by VA prior to July 19, 2010.  That is, the record contains no statement, communication, or other information from the Veteran or his representative, prior to July 19, 2010, that can reasonably be construed as constituting an earlier claim for service connection for a psychiatric disability.

2.  The earliest date of claim for service connection for a psychiatric disability, July 19, 2010, is later than the date entitlement arose.

CONCLUSION OF LAW

The criteria for an effective date earlier than July 19, 2010, for the grant of service connection for an adjustment disorder with depression and anxiety have not been met.  38 U.S.C.A. �� 5101(a), 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. �� 3.1(p), 3.102, 3.151, 3.155, 3.157, 3.160(c), 3.400 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, �� 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2015).

In a July 2010 VCAA letter, the Veteran was notified of the elements of an effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In any event, the effective date issue on appeal arises from disagreement with the effective date assigned upon the grant of service connection for an adjustment disorder with depression and anxiety in a September 2010 rating decision.  In this regard, the courts have held, and VA's General Counsel has agreed, that in cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. � 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme.  Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007).  See also VAOPGCPREC 8-2003 (Dec. 22, 2003).

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement (NOD) begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. �� 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements, such as an earlier effective date.  Id.  There has been no allegation of such error in this case.  See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), service personnel records (SPRs), VA treatment records, VA Vet Center records, and VA examination reports.  For his part, the Veteran has submitted personal statements, representative statements, and duplicate VA Vet Center records.  The Veteran has not identified any other outstanding, available evidence that is relevant to the effective date issue being decided herein.

Moreover, as discussed below, the resolution of the earlier effective date issue turns primarily on when the Veteran first filed his claim for service connection for a psychiatric disability.  Thus, a VA examination and opinion are not needed to fairly decide this claim for an earlier effective date.  See 38 U.S.C.A. � 5103A(d)(2)(A)-(C); 38 C.F.R. � 3.159(c)(4)(A)-(C).  See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past).

With regard to the previous September 2014 Board remand, the Board finds that the RO/AMC substantially complied with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to substantial compliance with the remand orders, but not strict compliance).  Specifically, pursuant to the remand, the RO/AMC scheduled the Veteran for a Board videoconference hearing in March 2016, to which the Veteran failed to appear without cause or explanation.  As such, the RO/AMC has substantially complied with the Board's instructions.

The Board is therefore satisfied that the RO has provided all assistance required by the VCAA.  38 U.S.C.A. � 5103A (West 2014).  Hence, there is no error or issue that precludes the Board from addressing the merits of the earlier effective date issue on appeal.

II.  Factual Background and Contentions

The Veteran's STRs and SPRs dated in 2003, 2006, and 2007 show that he served in Iraq as a gunner in a trucking unit in the Army.  It was conceded by the RO that he was exposed to combat situations such as enemy gunfire in Iraq.  STRs also document the Veteran was seen for behavioral health issues and alcohol use in 2006.  He underwent in-service counseling for his psychiatric problems.

On September 30, 2007, the Veteran separated from active duty.

On September 9, 2007, a few weeks prior to separation from service, the Veteran filed a formal claim for service connection for a left leg shin disorder, a low back disorder, hearing loss, and tinnitus.  See VA Form 21-526 (Veteran's Application for Compensation).  However, there was no mention of PTSD or any other psychiatric disorder.

From 2007 to 2010, the Veteran was treated for depression, anxiety, alcohol abuse, cocaine abuse, and other psychiatric issues, according to VA treatment records, VA substance abuse treatment program (SATP) records, Norwich Vet Center records, and an August 2010 VA psychological examination.

On July 19, 2010, the Veteran filed an informal claim for service connection for PTSD.  (Ultimately, this was the effective date awarded by the RO for the grant of service connection for an adjustment disorder with depression and anxiety).

On August 24, 2010, the Veteran underwent a VA psychological examination in which the VA examiner opined the Veteran had adjustment disorder with significant depressive and mild anxiety features due to his military service in Iraq.

In a September 27, 2010 rating decision, the RO granted service connection for an adjustment disorder with depression and anxiety, effective from July 19, 2010, which was the date of the Veteran's initial informal claim for service connection for a psychiatric disability.  See 38 U.S.C.A. � 5110(a); 38 C.F.R. � 3.400.  The grant of service connection was based on the August 2010 VA examiner's nexus opinion, as well as STRs, VA treatment records, and VA Vet Center records dated from 2007 to 2010.

In a May 2011 NOD, the Veteran appealed the effective date assigned for the grant of service connection for an adjustment disorder with depression and anxiety.  The appeal eventually reached the Board.

The Veteran and his agent have contended that the July 19, 2010 effective date assigned for the grant of service connection for adjustment disorder with depression and anxiety is incorrect.  The Veteran seeks an earlier effective date of October 1, 2007, which was the day after his discharge from service.  In particular, the Veteran believes that the RO should have sympathetically read the September 9, 2007 formal claim for service connection for other disabilities as an inferred claim for service connection for a mental health condition as well.  He has also asserted that his post-service treatment records for mental health problems on a continual basis at the Norwich VA Veteran Center beginning in December 2007 meet the criteria for a reasonably raised informal claim for service connection for a psychiatric disability.  In other words, he contends this medical evidence reasonably raised a claim for service connection for a psychiatric disability, regardless of the fact that he did not expressly file a specific claim until July 2010.  As such, because the Veteran says he filed an earlier inferred service-connection claim for a psychiatric disability and was treated for psychiatric problems within one year of his September 2007 discharge, the effective date grant should be retroactive to day after discharge from service - that being October 1, 2007.  See November 2010 representative statement; January 2012 VA Form 9; January 2012 Veteran's statement.

III.  Earlier Effective Date Law and Analysis

Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. � 5110(a) (West 2014); 38 C.F.R. � 3.400 (2015).  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application.  38 U.S.C.A. � 5110(a).

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 U.S.C.A. � 5110 (b)(1); 38 C.F.R. � 3.400(b)(2).

The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C. � 5110(b)(3); 38 C.F.R. �� 3.1(p), 3.155(a).  The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision.  See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994).  However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative.  Cintron v. West, 13 Vet. App. 251, 259 (1999).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.  See 38 U.S.C.A. � 5101(a); 38 C.F.R. �� 3.151(a).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. � 3.1(p).  Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  Such an informal claim must identify the benefit sought.  38 C.F.R. � 3.155(a).  Again, VA is required to identify and act on informal claims for benefits.  38 U.S.C. � 5110(b)(3); 38 C.F.R. �� 3.1(p), 3.155(a).  However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it").  See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

A pending claim is an application, formal or informal, which has not been finally adjudicated.  38 C.F.R. � 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009).  A finally adjudicated claim is defined as "an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction."  38 C.F.R. � 3.160(d).  Such an action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest.  Id.  The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it.  Norris v. West, 12 Vet. App. 413, 422 (1999).  The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper.  Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. � 5107(b).

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled an effective earlier than July 19, 2010 for the grant of service connection for an adjustment disorder with depression and anxiety.

At the outset, the Board finds the evidence does not demonstrate an informal claim for service connection for a psychiatric disability was received within one year after the Veteran's separation from military service on September 30, 2007, so the effective date obviously cannot be the day following his separation from service.  38 U.S.C.A. � 5110 (b)(1); 38 C.F.R. �3.400(b)(2)(i).  Moreover, the claims folder contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for a psychiatric disability after his separation from service in September 2007 but before the July 19, 2010 effective date assigned.  See 38 C.F.R. �� 3.1(p), 3.155(a).  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

In this regard, the Board has considered the contention made by the Veteran and his representative regarding the earlier September 9, 2007 formal claim for service connection of record.  However, that claim specifically identified a left leg shin disorder, a low back disorder, hearing loss, and tinnitus.  Even when sympathetically read, it cannot be construed as a claim for service connection for a psychiatric disorder, as the claim did not "identify the benefit sought."  38 C.F.R. � 3.155(a).  Indeed, there was no mention of a psychiatric disability or PTSD or psychiatric symptoms in the September 2007 formal claim.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57.  The Board emphasizes that, in determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative.  Cintron, 13 Vet. App. at 259.

With regard to the medical evidence of record, the Board has also considered that the Veteran's STRs dated in 2006 and 2007 and his post-service VA mental health treatment records, VA SATP records, and Norwich Vet Center records dated from 2007 to 2010 document symptoms and treatment for depression, anxiety, alcohol abuse, cocaine abuse, and other psychiatric issues.  Nevertheless, the Board does not find that such STRs and post-service medical records would constitute an informal claim for service connection for a psychiatric disorder, even when considered in conjunction with the earlier September 2007 claim for other disabilities.  His STRs are military treatment records created by a military physician.  His post-service VA treatment records and VA Vet Center records are VA generated records created by VA medical personnel and counselors.  They are not a communication from the Veteran, his representative, a Member of Congress, or an agent communicating an intent to file a claim for compensation benefits.  See 38 C.F.R. �� 3.1, 3.155(a), (b).  The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.  See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006), (citing Brannon, 12 Vet. App. at 35).  Furthermore, the Court has held that, in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit.  Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007).  In addition, the Court has held that a Veteran's attempt to obtain treatment does not comprise a claim.  Dunson v. Brown, 4 Vet App. 327, 330 (1993).

VA must have some means of distinguishing between legitimate claims and ordinary medical paperwork.  The basic procedural requirements imposed by � 3.155 serve this purpose.  Indeed, if the Veteran's STRs and post-service treatment records were interpreted as an informal claim for service connection for a psychiatric disability, this "would eviscerate the intent requirement [of � 3.155]."  See Ellington, 22 Vet. App. at 146.

The Court recognized two exceptions to this general rule: (1) when an underlying claim has been awarded and the medical records demonstrate that a veteran's disability has increased (38 C.F.R. � 3.157), or (2) when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim.  Criswell, 20 Vet. App at 504.  However, neither exception applies in this case.  Any references to psychiatric disability in the VA clinic records prior to the effective date of award assigned in this case could not support an application to reopen under 38 C.F.R. � 3.157(b)(1) as VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established.  See Sears v. Principi, 16 Vet. App. 244, 249   (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim).

The claims file does not contain any other communication from the Veteran or representative indicating an intent to seek or a belief in entitlement to service connection for a psychiatric disability from the time of his discharge from service in September 2007 until July 19, 2010.  38 C.F.R. �� 3.1(p), 3.155(a).  Moreover, there is no provision in the law allowing for an earlier effective date based on the fact that his psychiatric problems existed from the time of his military service as documented in his STRs and his later VA treatment records, VA Vet Center records, and VA examination.  The Board's actions are bound by the applicable law and regulations as written and we no power to grant benefits not authorized by law.  38 U.S.C.A. � 7104(c).

With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation.  However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought.  This is determined on a "facts found" basis.  See 38 U.S.C.A. � 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  It is important to note that an effective date generally can be no earlier than the "facts found."  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. � 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  DeLisio, 25 Vet. App. at 56.

In this case, as to the date of entitlement, STRs dated in 2006 and 2007 and VA Vet Center records and VA treatment records beginning in December 2007 document treatment and counseling for depression, anxiety, alcohol abuse, cocaine abuse, and other psychiatric issues, due to the Veteran's in-service traumatic experiences and post-service restlessness as well.  Thus, it is clearly shown by this medical evidence that the Veteran's psychiatric symptoms have been present during his military service since at least 2006.  As such, the criteria for entitlement to service connection for a psychiatric disability were met as early as 2006.

But the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. � 5110(a); 38 C.F.R. � 3.400.  Thus, regardless if entitlement arose during service in 2006, the effective date for the grant of service connection for the Veteran's adjustment disorder with depression and anxiety cannot be earlier than the date of the claim, which was July 19, 2010.

Accordingly, the Board concludes that July 19, 2010, the date of receipt of the Veteran's initial informal claim for service connection for a psychiatric disability, is the proper effective date for the grant of service connection.  38 U.S.C.A. � 5107(b).

ORDER

An effective date earlier than July 19, 2010, for the grant of service connection for an adjustment disorder with depression and anxiety is denied.

____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JONATHAN HAGER

text:
Citation Nr: 1617000
Decision Date: 04/28/16    Archive Date: 05/04/16

DOCKET NO.  11-16 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Michael Sanford, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1969 to April 1971.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  In that decision, the RO increased the rating for the Veteran's PTSD to 70 percent.

In August 2013, the Board remanded this matter for further evidentiary development.  It has since been returned to the Board for adjudication.

In the August 2013 remand, the Board noted that the evidence suggested that service-connected posttraumatic stress disorder (PTSD) has resulted in unemployability and, thus, the TDIU claim has been reasonably raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam).  The Veteran filed a formal application for a TDIU in October 2013.

FINDINGS OF FACT

1. The Veteran is in receipt of service connection for PTSD, rated 70 percent; tinnitus, rated 10 percent; and bilateral hearing loss, rated noncompensable.  His combined rating is 70 percent from October 18, 2010.

2. The evidence is at least evenly balanced as to whether the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation.

CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU have been met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.340, 3.341, 4.16 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

To the extent the actions taken herein below are favorable to the Veteran and considered a full grant of benefits requested with respect to the only issue on appeal, further discussion of the VCAA is not necessary at this time.

TDIU

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from securing or following any form of gainful employment consistent with his education and occupational experience.   38 C.F.R. �� 3.340, 3.341, 4.16.

Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment.  Under 38 C.F.R. � 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability.  If there are two or more such 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).

The Veteran is in receipt of service connection for PTSD (currently at 70 percent), tinnitus (currently at 10 percent); and bilateral hearing loss (noncompensable).  His combined rating is 70 percent from October 18, 2010.  He is thus eligible for consideration for a TDIU on a schedular basis.  See 38 C.F.R. � 4.16(a).

VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992).

For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved.

For the following reasons, the Board finds that Veteran's service-connected PTSD renders him unable to secure or follow a substantially gainful occupation.

The Veteran has worked the entirety of his career for the Connecticut Department of Education.  See Form 21-8940.  He worked there from 1988 until 2009 as an educational consultant.  See March 2014 VA Examination Report.  The Veteran reported that initially he worked independently from others; however, towards the end of his employment, he was required to react frequently with teachers and other individuals.  See id.  The Veteran stated that because he was unable to interact with others, he would neglect work and opted to retire early due to his inability to intact with others.  See id.

The Veteran was afforded a VA examination in November 2010.  There, the examiner reported that the Veteran retired early from work due to increased anxiety in dealing with other coworkers.  The Veteran reported not wanting to interact with others.  He stated that he would stop taking phone calls due to not wanting to speak with anyone else.  The examiner stated that the Veteran's prognosis was poor.  The examiner stated that it was at least as likely as not that PTSD symptoms led to decreased ability to tolerate frustration and multitask at work.  The examiner noted that the Veteran is only able to complete one task at a time and multitasking causes the Veteran to forget what he is doing.

The Veteran was afforded a VA examination in March 2014.  The examiner opined that it is likely that the Veteran would be moderately impaired in a work environment that requires frequent interactions with customers, peers, and supervisors due to his PTSD.  The Veteran reported that after being required to interact with peers more frequently at work, he would call in sick about two times per month due to anxiety.  The examiner noted that the Veteran had good productivity when he worked independently of others.

Records from the Social Security Administration (SSA) show the Veteran applied for SSA disability benefits in 2011.  The Veteran's application for SSA disability benefits on the basis of PTSD was denied.  A reconsideration decision from SSA noted that the Veteran was not capable of performing the work he engaged in throughout the entirety of his career, but could engage in work that was less demanding.  The Veteran reported difficulty with memory, completing tasks, concentration, and getting along with others.  SSA records noted that the Veteran had difficulty interacting in social situations and he maintained very few social relationships.

Neither the SSA findings nor the medical opinions are dispositive on this issue. Rather, the question of whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner").  Entitlement to TDIU is based on an individual's particular circumstance.  Rice, 22 Vet. App. at 452.  Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert").

The Veteran has a limited employment history.  He worked in the same position as an educational consultant with the same school system for the entirety of his career.  He worked well in that position until the nature of his position changed-from an independent one into one that required frequent interaction with others.  The Veteran had difficulty interacting with others due to his PTSD.  Towards the end of his career, the Veteran would let work pile up, he stopped taking telephone calls and would call in sick to work just to avoid having to interact with others.  This caused the Veteran to retire early from a position which he once thrived in.  The March 2014 VA examiner acknowledged that the Veteran would have at least moderate difficulty working in an environment where he was required to interact with others.  The Board accepts the examiner's opinion as probative.

Thus, the Veteran has worked in one position his whole career.  The nature of that position changed and the Veteran's PTSD significantly inhibited his ability to work in that position.  This ultimately forced the Veteran to retire.  It is not apparent that the Veteran could be employed in a different position-namely, one that requires minimal interaction with others.  Indeed, given the Veteran's sole employment as an educational consultant for decades, it seems unlikely that the Veteran would be successful in changing to a new occupational field.  Given the occupational limitations highlighted by the March 2014 VA examiner, it appears that PTSD renders the Veteran unable to secure or follow substantially gainful employment.  See December 2015 Appellant's Post-Remand Brief (arguing that the March 2014 VA examination report is probative of the issue of unemployability).

Thus, the Board finds that the evidence is at least evenly balanced as to whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment.  See Geib, 733 F.3d at 1354.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102.

ORDER

A TDIU is granted, subject to controlling regulations applicable to the payment of VA monetary benefits.

____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: THERESA M CATINO

disposition: remanded

text:
Citation Nr: 1618000
Decision Date: 05/04/16    Archive Date: 05/13/16

DOCKET NO.  10-46 962	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois

THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.

REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs

ATTORNEY FOR THE BOARD

M. Mac, Counsel

INTRODUCTION

The Veteran served on active duty from November 1965 to August 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).

In September 2014 the Board remanded the claims for service connection for a bilateral hearing loss disability and tinnitus for further development.  In a July 2015 rating decision, the Appeals Management Center (AMC) granted service connection for tinnitus.  This issue is therefore no longer in appellate status.  For the reasons explained below, further development remains necessary regarding the issue of entitlement to service connection for a bilateral hearing loss disability.  The appeal of this particular issue is thus REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.

This appeal was processed using the Veterans Benefits Management System (VBMS).  Records in the Virtual VA paperless claims processing system also have been reviewed and considered.

REMAND

In the September 2014 remand, the Board instructed in part that the appropriate development be undertaken to obtain any outstanding pertinent medical records and that, if the benefit sought was not granted, the Veteran be issued a Supplemental Statement of the Case (SSOC).

VA sent the Veteran a letter in July 2015 asking him to identify any outstanding treatment records that needed to be obtained, including private treatment records.  In July 2015, the Veteran was issued an SSOC.  However, both the July 2015 letter and the July 2015 SSOC were sent to the Veteran's previous address on [redacted].  The July 2015 letter was returned as "not deliverable as addressed, and unable to forward."  The Board notes that in the February 2010 Form 9 Appeal the Veteran provided the [redacted] address.  However, in his subsequent Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, dated in February 2015, he indicated a new address on [redacted].  Further, in September 2014 VA sent a letter notifying the Veteran that the letter was previously undeliverable and was being resent to his address on [redacted].  Thus, as the July 2015 duty to assist letter and July 2015 SSOC were sent to an incorrect address, there has not been substantial compliance with the Board's remand directives.  Compliance with the Board's remand instructions is neither optional nor discretionary.  See Stegall v. West, 11Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1. Confirm with the Veteran and his representative that his current mailing address is on [redacted] as indicated on his February 2015 Form 21-22.  If this is not the correct address the Veteran's most recent address should be obtained.  If no response is received, the Veteran's mailing address on the February 2015 Form 21-22 should be used for any correspondence.

2. Then, send a letter to the Veteran at his address on [redacted], or a more recent address if indicated, asking that he identify any outstanding records of pertinent medical treatment from VA or private health care providers.  Procedures should be followed for obtaining the records set forth by 38 C.F.R. � 3.159(c).  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R.
� 3.159(e).

3. Afterwards, the issue of service connection for a bilateral hearing loss disability should be readjudicated.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate SSOC, which must be sent to his current address on [redacted] as indicated on his February 2015 Form 21-22, or a more recent address if provided.  Thereafter, the case should be returned to the Board for appellate action.

No action is required of the Veteran until he is notified by VA.  However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991).  His failure to help procure treatment records, or to report for a scheduled VA examination, may impact the decision made.  38 C.F.R. � 3.655 (2015).  He is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  It must be afforded prompt treatment.  The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner.  38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Only a decision of the Board is appealable to the Court.  38 U.S.C.A. � 7252 (West 2014).  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: MICHAEL A HERMAN

condition: back

text:
Citation Nr: 1619000
Decision Date: 05/11/16    Archive Date: 05/19/16

DOCKET NO.  10-04 476	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah

THE ISSUE

Entitlement to service connection for a right hand disability, to include as secondary to the service-connected cervical spine degenerative disc disease.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Mac, Counsel

INTRODUCTION

The Veteran served on active duty from July 1989 to August 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in August 2009 of a Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran testified at a video conference hearing before a Veterans Law Judge in January 2011, who has since retired.  A letter was sent to the Veteran on March 9, 2016 asking him to reply within 30 days as to whether he wanted a new Board hearing.  In the letter the Veteran was notified that if he did not respond within 30 days from the date of the letter it will be assumed that he did not want another Board hearing.  The Veteran did not respond and thus it must be presumed that he does not want another hearing.

Additional VA treatment records were received in December 2015.  Although a new Supplemental Statement of the Case has not been issued following receipt of these records, the records are not pertinent to the Veteran's claim of service connection for a right hand disability, and thus a waiver of initial RO consideration is not needed. See 38 C.F.R. � 20.1304.

In February 2014, the Board remanded the issue for further development.  As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

FINDING OF FACT

The Veteran's right hand disability is not etiologically related to his active service, to include a service-connected disability.

CONCLUSION OF LAW

The criteria for service connection for a right hand disability have not been met.
38 U.S.C.A. �� 1110, 1131 (West 2014); 38 C.F.R. �� 3.303, 3.310 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. �� 3.159, 3.326(a).

The duty to notify has been met.  Such includes the Veteran's personal hearing before the Board.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Importantly, neither the Veteran nor his representative has alleged the contrary.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims.  Service treatment records, post-service treatment records, identified and relevant private treatment records, claims submissions, and lay statements have been associated with the record.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.

VA examinations and opinions also were obtained in August 2011 and April 2014.  The Veteran's representative in October 2013 questioned the adequacy of the August 2011 VA examiner's opinion regarding whether the service-connected degenerative disc disease aggravated the right hand carpal tunnel syndrome because EMG studies cannot diagnose sensory radiculopathy or pain/paresthesias in radicular distribution.  However, the examiner's opinion that the cervical spine condition did not aggravate carpal tunnel syndrome is fully adequate as the examiner considered the procurable and assembled evidence of record and explained that the conditions have a different physiologic mechanism.  Similarly, the August 2011 VA examiner's opinion is fully adequate regarding whether the service-connected cervical spine disability caused the right hand carpal tunnel syndrome.

To the extent that the August 2011 VA examiner opined that the right hand carpal tunnel syndrome was not directly related to service as service treatment records do not document a hand injury, his opinion is inadequate as the Veteran was treated for lacerations to his right hand when he was bitten by a dog during service in September 1989.  However, another VA opinion was obtained in April 2014 whereby the examiner addressed whether the current hand disability is directly related to service, to include the injuries incurred from the dog bite in September 1989.

Thus the August 2011 VA opinion is fully sufficient regarding whether the right hand disability is secondary to the service-connected cervical spine disability and the April 2014 VA opinion adequately addressed whether the right hand disability is directly related to service.  Both VA examiners reviewed the claims folder, provided medical histories, and opinions along with a supporting rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Analysis

Generally, to provide service connection, a veteran 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 or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. � 3.303(a).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."

Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. � 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. � 3.303(d).

Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disorder.  38 C.F.R. � 3.310(a).  Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition.

The Veteran contends that he has a right hand disability that is directly related to an injury during service or alternatively is secondary to his service-connected cervical spine degenerative disc disease.  See October 2009 Informal Conference Report, May 2010 statement, and January 2011 Board hearing testimony.

The Veteran's service treatment records disclose that his right hand was bitten by a dog in September 1989.  There was a laceration on three digits and part of the nail was missing on the third digit.  X-ray was negative for fracture.  He was seen on several subsequent occasions for follow-up.  In early October, there was no undue redness, and there was no swelling or drainage.  A small amount of capillary oozing was noted.  The assessment was healing fingertip avulsion (ring finger).  It was reported five days later that the area was healing well and there were no signs of infection.

After service, treatment records in October 2003 document the Veteran's complaints of right hand pain.  In December 2003 the records show a diagnosis of carpal tunnel syndrome.  VA treatment records in March 2009 show that a February 2009 electromyography (EMG) revealed carpal tunnel syndrome in the right hand without evidence of cervical radiculopathy.

As to whether there is evidence of an inservice occurrence of an injury or disease and competent evidence of a nexus between the right hand carpal tunnel syndrome and service, in the April 2014 VA opinion the examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness.  She explained that the evidence shows the Veteran has a right hand disability manifested by carpal tunnel syndrome, which involves dysfunction of nerve conduction through the median nerve (in the wrist), and most often is a result of overuse and/or repetitive motion of the wrist and hand and thus was not caused by any previous dog bite injury to the Veteran's fingers of the right hand.  The examiner in rendering the opinion reviewed the file to include the Veteran's service records and based on the nature of the Veteran's current right hand disability concluded that his right hand carpal tunnel syndrome was not incurred in or caused by service.

As to whether the Veteran's service-connected cervical spine degenerative disc disease caused or aggravated his right hand disability, on the VA examination in August 2011 the examiner noted that the Veteran has right hand carpal tunnel syndrome and opined that it is not at least as likely as not (less than 50 percent degree of probability), that the Veteran s right hand carpal tunnel syndrome is proximately due to his service-connected cervical spine disability as the Veteran's carpal tunnel syndrome is a compression of the median nerve at the wrist and there is no evidence that he has cervical radiculopathy compressing the nerves at the cervical spine level.  The examiner also opined that it is less likely as not (less than 50/50 probability) that the Veteran s current right hand disability has been aggravated by his service-connected cervical spine disability as there is no evidence that that cervical spine condition aggravates carpal tunnel syndrome as this condition has a different physiologic mechanism.  In an addendum later that month the examiner confirmed that his opinion did not change in light of a contemporaneous EMG study showing carpal tunnel syndrome in the right hand without cervical radiculopathy.

With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The Board finds the April 2014 VA opinion addressing whether the right hand carpal tunnel syndrome is directly related to service and the August 2011 VA opinion addressing whether it is secondary to the service-connected cervical spine degenerative disc disease are significantly probative as the examiners carefully reviewed the Veteran's medical history and his relevant longitudinal complaints in reaching their conclusions.  The Veteran during his January 2011 Board hearing also admitted that no medical professional has written any opinion that his inservice neck injury caused his current right hand problems.

Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).  See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology).

The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed.  Layno v. Brown, 6 Vet. App. 465 (1994).  Although the Veteran is competent to describe symptoms associated with his right hand disability, his report on the September 2011 VA Occupational Therapy Consult that he has had right hand numbness for 20 years, i.e. since service, is not credible as it is inconsistent with the other evidence of record that does not document a right hand disability until over 9 years after active service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).  Further, subsequent to the September 1989 dog bite injury an inservice July 1990 periodic examination shows that the upper extremities were evaluated as normal and the examiner noted that the Veteran had 2 small lacerations on his forehead in 1988 which were sutured with full recovery.  Given that other lacerations were being evaluated one would expect that the Veteran would have mentioned the lacerations and residuals he incurred on his right hand from the September 1989 dog bite injury.  See AZ v. Shinseki, 731 F.3d 1303   (2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).

It is likewise noteworthy that no reference was made to the right hand when the Veteran filed an earlier claim for compensation in August 1993.  Furthermore, on the VA examination in August 2011, the Veteran reported that he began having problems with numbness and pain in his hands starting around 2003.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Even if the Veteran's statements regarding the onset of his right hand disability were credible, his opinions that his right hand carpal tunnel syndrome is directly related to service or alternatively secondary to his service-connected cervical degenerative disc disease, are outweighed by the unfavorable August 2011 VA opinion and April 2014 VA opinion.  These opinions, rendered by a medical professional reflected their specialized knowledge, training, and experience as to the diagnosis and etiology of the Veteran's right hand disability, as well as consideration of all relevant lay and medical evidence of record.  The onset and etiology of this disability is a complex medical matters beyond the ken of a layperson.  Jandreau v. Nicholson, 492 F.3d 1372 (2007).  The determination whether the Veteran has a right hand disability that is either related to service or secondary to the service-connected cervical spine degenerative disc disease requires specialized training and therefore is not susceptible of lay opinion.  Medical professionals have greater skill.

The Veteran contends that his right hand carpal tunnel syndrome is associated with the demanding nature of his military occupational specialty as an avionic systems technician.  See, e.g., May 2010 statement.  However, no medical professional has related the Veteran's right hand carpal tunnel syndrome to the Veteran's work in service.  The only opinion of record linking his right hand carpal tunnel syndrome to his duties in service is his own general lay statement asserting such an association.  Such conclusory generalized lay statements suggesting a nexus between a current disability and service do not meet the "may be associated with service" element for providing yet a third VA examination, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).  Although lay persons may be competent to provide opinions as to some medical issues (Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific questions in this case regarding the etiology of the Veteran's carpal tunnel syndrome falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a probative medical opinion linking it to service.  Moreover, in May 2010, the Veteran himself stated that he did not "believe" that his work in service as an avionics systems technician was the "primary cause" of his right hand carpal tunnel syndrome as his cervical fusion surgery after service temporarily relieved his right hand pain.

Lastly, the Veteran's carpal tunnel syndrome is not included among the chronic diseases under 38 U.S.C.A. � 1101 and 38 C.F.R. � 3.309(a), therefore consideration of continuity of symptomatology under 38 C.F.R. � 3.303(b) is not applicable.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim of service connection for a right hand disability, to include as secondary to the service-connected cervical spine degenerative disc disease, that doctrine is not applicable.  38 U.S.C.A. � 5107(b); 3.102.

ORDER

Service connection for a right hand disability, to include as secondary to the service-connected cervical spine degenerative disc disease, is denied.

____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs