judge_norm: J A MARKEY

condition: psychiatric

text:
Citation Nr: 1232000
Decision Date: 09/17/12    Archive Date: 09/24/12

DOCKET NO.  07-03 310A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. D. Deane, Counsel

INTRODUCTION

The Veteran served on active duty from June 1952 to December 1955 and from February 1956 to February 1964.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the RO in Montgomery, Alabama.

In June 2010 and November 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional development and readjudication.

As a procedural matter, withholding tax statements dated in 1958 and 1959 were added to the file in August 2012 without a waiver after the issuance of the July 2012 supplemental statement of the case (SSOC) and before the case was certified for appeal.  The Board has reviewed the additional evidence but finds that the withholding tax statements are not pertinent to the Veteran's current claim on appeal and therefore concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to issue a SSOC.

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ."

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2011).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

A totality of the evidence of record fails to establish a diagnosis of PTSD or any other acquired psychiatric disorder during the appeal period.

CONCLUSION OF LAW

An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred.  38 U.S.C.A. �� 1101, 1110, 1112, 1113, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. �� 3.159, 3.303, 3.304(f), 3.307, 3.309, 4.125(a) (2011).

REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Before addressing the merits of the service connection issue on appeal, the Board notes that 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).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  Here, the Veteran filed a service connection claim for PTSD in July 2005.  The Veteran was notified by the RO via a letter dated in July 2005 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2005.

The Board is cognizant that the Veteran was not provided information that a disability rating and an effective date for the award of benefits will be assigned if service connection was awarded.  In light of the denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Next, VA has a duty to assist a veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159 (2011).  The RO has obtained service treatment records, service personnel records, VA and private treatment records.  In June 2010, VA was informed that records from the Social Security Administration (SSA) had been destroyed.  In a March 2011 memorandum, the AMC made a formal finding that VA hospital treatment records from Martinez VA Outpatient Clinic dated from January 1975 to February 1975 and records from SSA were unavailable for review.  In making a formal finding regarding the unavailability of these records, the RO noted that all efforts to obtain the information had been exhausted and that any further efforts to obtain the information would be futile.  The Veteran was informed of the contents of that memorandum in a March 2011 letter from the AMC.  The Veteran submitted private treatment records and multiple written statements discussing his contentions.  Neither the Veteran nor his representative has identified any outstanding pertinent evidence related to his service connection claim.

In addition, VA examinations with respect to the service connection issue on appeal were obtained in December 2009, October 2010, and December 2011.  38 C.F.R. � 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are more than adequate, as each is predicated on a full reading of the private and VA medical records in the Veteran's claims file.  In particular, the examiners also considered the pertinent evidence of record and the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. � 3.159(c)(4) (2011).

The Board is aware that private treatment records dated in May 2010 and May 2011 from A. P., M. D., were associated with the claims file after the December 2011 VA examination contrary to the Board's request that those records should be obtained prior to any VA examination.  However, the pertinent records were placed in the file shortly thereafter and the December 2011 VA examiner did make a point to discuss the Veteran's reported private treatment and prescribed medication from A. P., M. D.  Thus, the Board may proceed to adjudication of this appeal.  See generally D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that when the examiner made the ultimate determination required by the Board's remand, such determination more than substantially complied with the remand order).

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. � 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. � 3.303(d).

Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. � 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases, including psychosis and other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309 (2011).

In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R.
� 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. � 3.304(f) (2011).

A diagnosis of PTSD need only be in accordance with 38 C.F.R. � 4.125(a), which simply mandates that, for VA compensation purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  38 C.F.R. � 3.304(f).  Mental disorders are evaluated under 38 C.F.R. � 4.130.  The DSM-IV provides guidance for the nomenclature employed in this regulation.

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  38 U.S.C.A. � 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The Board acknowledges that the Court held in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. � 1154(a) (West 2002 and Supp. 2011).

Personality disorders are not considered diseases or injuries for compensation purposes, and are not considered disabilities for which service connection can be established.  38 C.F.R. �� 3.303(c), 4.9, 4.127 (2011); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that 38 C.F.R. � 3.303(c), as it pertains to personality disorder, is a valid regulation).  Service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury.  See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. � 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. � 3.102 (2011).

Factual Background

Service treatment notes showed that examiners listed the Veteran's psychiatric system as normal on clinical evaluation in examinations of record dated in June 1952, November 1955, February 1956, July 1960, and March 1962.  The Veteran specifically checked  "no" to the inquiry "have you ever had or have you now" regarding depression and excessive worry in Report of Medical History documents dated in June 1952 and March 1962.  An October 1963 clinical record showed a provisional diagnosis of acute alcoholism and acute anxiety reaction.  A neuropsychiatric consultation report dated later in October 1963 noted an overall impression of moderate personality disorder, probably emotionally unstable personality with alcoholic factures and no indication was seen at that time for psychiatric hospitalization.  Mental status examination disclosed no psychosis, clinical neurosis, depression, or suicidal ideation.  His January 1964 service separation examination report listed a notation of emotionally unstable.  A January 1964 clinical record showed a diagnosis of chronic alcoholism after admission to hospital was made based on Veteran's deteriorated condition during his January 1964 discharge examination.

Post-service VA clinical records detailed that the Veteran was hospitalized from July to August 1964 for acute gastritis, chronic alcoholism, and passive-aggressive personality.

Private treatment records from Napa State Hospital detailed multiple hospitalizations.  In June 1965, the Veteran was admitted for acute alcoholism with delirium tremens, malnutrition, and extremely immature personality.  At that time, the final diagnosis was psychotic depression.  He was treated for acute brain syndrome with alcoholic intoxication with psychotic reaction and delirium tremens in November 1965.  A release summary detailed he was treated from June 1965 to January 1966 for psychotic depressive reaction, acute brain syndrome, and alcohol intoxication.  The Veteran was treated from July 1966 to February 1967 for Laennec's cirrhosis, chronic alcoholic gastritis, psychoneurotic reaction, and depressive reaction.  From December 1967 to January 1968 and from May 1968 to June 1968, the Veteran received inpatient treatment for sociopathic personality disturbance and alcoholism (addiction).  He was treated for schizophrenia (schizo-affective type) from February to March 1975.

In an October 1976 statement, a VA physician listed a diagnosis of alcoholic deterioration (variety of chronic brain syndrome).  A March 1977 VA examination report showed complaints of nervousness and alcoholism since 1968.  The examiner detailed that the Veteran presented a picture of personality disorder, inadequate personality.

In a December 1992 statement, a private physician, K. E. M., M. D., reported that the Veteran has suffered in the past from schizophrenic episodes characterized by confusion, hearing voices, and seeing visions.  The physician indicated that the Veteran was now improved with no recent such problems but noted flat affect and general ineffectualness.

VA treatment notes dated in August 1997 and May 1998 listed diagnoses of depression and depressive disorder.  The Veteran reported being depressed from the death of his wife four years before and discussed not being happy in his retirement home living situation.  In an August 1998 VA PTSD examination report, the examiner, a VA physician, listed diagnoses of social phobia and alcohol dependence (by prior history).

Additional VA treatment notes dated October 2002 listed a diagnosis of adjustment disorder with depressive mood, resolved.  Records dated in 2003 and 2004 reflected findings of adjustment disorder, negative PTSD, depression, and adjustment disorder with depression.  In April 2004, the Veteran was noted to have no psychiatric symptoms.  A January 2005 VA treatment record showed that mental examination findings were within normal limits.  The Veteran indicated that he was not being treated for depression in a March 2005 treatment record.  However, additional VA treatment records dated in 2009 and 2010 listed diagnoses of anxiety disorder, adjustment disorder with depressed mood, and stable anxiety and depression.

In the March 2009 VA mental disorders examination report, the examiner, a VA clinical psychologist, noted the Veteran's history of psychiatric treatment (with no treatment since 2004) and inpatient mental health hospitalizations (none since 1969 when he stopped using alcohol.  The Veteran reported that after being seen in mental health and prescribed Zoloft, he had not had problems with depression since 2004.  The examiner commented that the Veteran's previous mental health problems requiring hospitalization were directly related to his alcohol abuse.  It was indicated that the Veteran currently denied any significant mental health symptoms in terms of frequency, severity, or impairment to warrant a diagnosis.  Based on DSM-IV guidelines, review of the Veteran's claims file, and a current assessment, the examiner did not list any diagnosis.

The Board remanded this matter in June 2010 to obtain an additional VA examination given the change in the expanded characterization of the issue on appeal and questions as to the true nature of the Veteran's psychiatric health.

In the October 2010 VA PTSD examination report, the examiner, a VA clinical psychologist, indicated that there was no evidence of PTSD or any other mental disorder.  When asked about what in-service experiences that he had were traumatic, the Veteran indicated that he could not describe any specific incidents.  The examiner acknowledged that the Veteran was hospitalized for alcoholism, depression, and psychoticism in the 1960s but indicated, based on today's standards, it was more likely than not he was suffering from severe consequences of chronic alcohol dependency back then.  The examiner commented that patients could have hallucinations and disturbed thinking as a result of alcohol dependency when they are going through withdrawal.  It was noted that the Veteran began drinking well prior to service, had a family history of alcoholism, and that there was no evidence that his old alcohol abuse would have been related to service (as he denied even having any memory of stressors from Korea).

It was noted that the Veteran had not been hospitalized since the 1960s for mood problems.  When questioned about his current mental symptoms, the Veteran reported that he had none.  He further indicated that he was prescribed Citalopram for irritability by his family practice doctor three years ago, detailing that his irritability had improved.  The examiner found that the objective testing data did not support a diagnosis of PTSD or any other mental disorder.  He concluded that the Veteran denied any significant stressors in the interview, reported euthymic mood, complained of zero symptoms for PTSD, and had intact cognitive functioning.

In a March 2011 statement, the Veteran reported being stationed on a submarine during his active service, performing covert missions for the NSA, and coming into contact with a Russian submarine.  He asserted that he drank alcohol to compensate for his problems during service and was currently prescribed Citalopram for mood and depression.

Thereafter, the Board again remanded this matter in November 2011 to obtain an additional VA examination in order to address whether any prior diagnosis of an acquired psychiatric disorder was related to service, even if the disorder had since resolved during the pendency of the claim.  It was highlighted that the October 2010 VA examiner failed to discuss the Veteran's recent treatment of depression with prescription drug therapy as well as provided little rationale for her negative opinion in spite of the fact that the above mentioned VA treatment records referenced current diagnoses of anxiety disorder and adjustment disorder with depression and the Veteran's active use of an anti-depressive medication.

Additional VA treatment records dated in 2011 showed anxiety disorder NOS and adjustment disorder with depressed mood listed as active problems.  In March and August 2011, it was noted that he had no history of PTSD or depression, had no acute complaints, and was prescribed Citalopram by an outside medical provider.

In the December 2011 VA PTSD Disability Benefits Questionnaire (DBQ) examination report, the examiner, a VA clinical psychologist, indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD or any mental disorder under the DSM-IV.  It was noted that the Veteran's report that he takes Citalopram prescribed by a private psychiatrist alone was not sufficient for diagnosis of a mood disorder.  However, the examiner did list a diagnosis of personality disorder NOS with antisocial traits.  The examiner discussed a detailed family, social, mental health, occupational, legal, behavioral, substance abuse and education history for the Veteran.  She highlighted that a June 1965 private treatment record showed treatment for alcoholism and reactive depression as well as contained a notation that the Veteran had been melancholy since his mother's death during his childhood.  It was noted that those findings indicated that any problems with the Veteran's mood dysregulation and alcoholism preexisted service.

Mental status examination findings were noted as variable mood due to constant VA denials, isolation behaviors, restricted affect, and no suicidal ideation.  After indicated that results of the Veteran's mental status examination were otherwise unremarkable, the examiner noted that her review of the claims file revealed that the Veteran had been diagnosed over the years with several different psychiatric disorders which later were explained by severe alcohol intoxication or loss of his wife.  It was further indicated that review of medical records showed that the Veteran was evaluated on a routine basis by his primary care provider and reported no problems with regards to his mental health.  The examiner discussed reported in-service stressor events but continually found that they did not meet DSM-IV diagnostic criteria for a PTSD diagnosis.

The examiner specifically indicated that the Veteran does not meet (nor has he ever met) the DSM-IV-TR diagnostic criteria for the diagnosis of PTSD.  She further determined that the Veteran currently does not have (nor has he ever had) any mood disorder symptoms that would meet the DSM-IV-TR diagnostic criteria for any Axis I disorder.  While acknowledging the Veteran's report that his private physician prescribed Citalopram, the examiner found that that information was not sufficient for a diagnosis of a mood disorder.  The examiner found no objective evidence based on examination test results to support the previously reported symptoms of or diagnoses of PTSD or any other Axis I mood disorder (including depression and/or anxiety).  She concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.

Private treatment records dated in May 2010 and May 2011 from A. P., M. D. were associated with the record in January 2012.  It was indicated that the Veteran had been prescribed Citalopram.  While the private physician listed assessments of depressive disorder, not elsewhere specified, he specifically indicated in the review of system section of his May 2011 record that the Veteran's neuro/psychiatric system was negative for depression and psychiatric symptoms.

Analysis

Based on a thorough review of the evidence discussed above, the Board finds that the totality of evidence fails to support a diagnosis of PTSD or any other acquired psychiatric disorder.

The Board is cognizant that the Veteran's private and VA treatment providers listed impressions and diagnoses of multiple psychiatric disorders in the outpatient and inpatient treatment records associated with the claims file.  However, the Board has determined that those findings have very little probative value when compared to the detailed findings and well-reasoned conclusions reached in the December 2009, October 2010, and December 2011 VA examination reports discussed at length above.  In this regard, the Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

Three separate VA examiners (VA clinical psychologists) have each determined that the Veteran does not have a mental disorder based on objective testing, examination of the Veteran, and review of the claims file.  The examiners cited to clinical data to support this position as well as provided explanations of why the prior treatment providers may have made diagnoses of PTSD and other acquired psychiatric disorders.  For example, in the March 2009 and October 2010 VA examination reports, the examiners acknowledged the Veteran's hospitalizations for alcoholism, depression, and psychoticism in the 1960s but clearly opined, based on today's standards, it was more likely than not he was suffering from severe consequences of chronic alcohol dependency back then.  The October 2010 VA examiner made a point to explain that patients can have hallucinations and disturbed thinking as a result of alcohol dependency when they are going through withdrawal.

In the December 2011 VA examination report, the examiner noted that her review of the claims file revealed that the Veteran had been diagnosed over the years with several different psychiatric disorders which later were found to be attributable to severe alcohol intoxication or the loss of his wife.  That examiner also highlighted the inconsistent nature of other VA and private treatment records which listed psychiatric findings but also repeatedly acknowledged the Veteran's reports of no problems with regards to his mental health.

The Board is also cognizant that the Veteran has been prescribed psychiatric medication by a private physician for several years during the appeal period.  While acknowledging the Veteran's report that his private physician identified as A. P., M. D. prescribed Citalopram, the December 2011 VA examiner found that that information was not sufficient for a diagnosis of a mood disorder.  The Board must also highlight the scant nature of the May 2010 and May 2011 private treatment records from that provider associated with the record.  While the private physician listed assessments of depressive disorder, not elsewhere specified, he specifically indicated in the review of system section of his May 2011 treatment record that the Veteran's neuro/psychiatric system was negative for depression and psychiatric symptoms.  The Board finds that the contradictory nature of the examination findings of the physician with his final assessment and prescribed medication lessens the probative value of those private treatment records.

In addition, multiple examiners both during and after service have found that the Veteran suffered from a personality disorder.  However, as discussed above, personality disorders are not considered diseases or injuries for compensation purposes, and are not considered disabilities for which service connection can be established.

In sum, the most competent and credible medical evidence of record fails to establish a diagnosis of any present mental disorder, to include PTSD according to VA regulation, 38 C.F.R. � 4.125(a), which in turn references the DSM-IV.  Thus, the Board finds that the most probative (persuasive) evidence that specifically addresses the question of whether the Veteran has a present psychiatric disability weighs against the claim.  Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).

The facts of the present case are clearly distinguished from those of McClain.  The Board is cognizant that an October 2002 VA treatment record contained a notation that diagnosed adjustment disorder with depressed mood had resolved.  However, on review, the Board finds that the totality of the evidence does not show that the Veteran has, nor has he had during the appeal period, any current residuals of an acquired psychiatric disorder, to include PTSD.  As discussed above, three separate VA examiners have each determined in reports found highly probative by the Board that the Veteran does not have (nor has he ever had) a mental disorder based on objective testing, examination of the Veteran, and review of the claims file.

Shedden element (1) is therefore not met.  As the Board has determined there is no probative medical evidence establishing a current diagnosis of an acquired psychiatric disorder, to include PTSD, a discussion as to whether there exists a medical nexus or causal relationship between military service and such disability is not necessary.  Consequently, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted.

Evidence of record also includes statements from the Veteran as well as his representative asserting a present psychiatric disability, continuity of psychiatric symptomatology since service, and a causal connection between his claimed PTSD and events in service.  The Veteran's statements in support of his claim for service connection for an acquired psychiatric disorder focus primarily on his allegation that he suffers from PTSD.  He attributes his treatment for multiple psychiatric disorders as early as 1965 (claimed as PTSD) to his active service.  Moreover, the Veteran, through his representative, argues that service connection is warranted for an acquired psychiatric disorder based on continuity of symptomatology and/or chronicity.

The Board must also analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").

The Federal Circuit recently held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. � 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.

While the Veteran is not competent to provide a diagnosis of an acquired psychiatric disorder, he is competent to describe his in-service and post-service recollections of psychiatric symptomatology, such as depression or anxiety, because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.

In this case, however, the Veteran lacks the competence to diagnose PTSD or any other acquired psychiatric disorder.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. � 3.159(a)(2).  Assessment of PTSD or any other acquired psychiatric disorder requires a mental health evaluation by a clinical psychologist or psychiatrist not lay observation.  It follows that the Veteran is not competent to assert that he experienced PTSD or any other acquired psychiatric disorder since service.  These disorders are not diagnosed by unique and readily identifiable features and do not involve a simple identification that a layperson is competent to make.  As alluded to above, the determination of both the diagnosis and etiology of a psychiatric disorder must be made by a mental health profession, pursuant to the DSM-IV.  This requires medical expertise that the Veteran fails to possess, such that the Veteran is not competent in that regard.  Therefore, the unsubstantiated statements of the Veteran as well as his representative regarding a purported diagnosis of PTSD or observed psychiatric symptomatology are found to lack competency.  Moreover, the Board finds that the medical evidence against the claim, especially the fact that it ultimately has been determined he does not have an acquired psychiatric disorder or PTSD according to the DSM-IV criteria, outweighs his unsubstantiated lay testimony to the contrary.

There is also no indication of entitlement to presumptive service connection for chronic diseases.  The record fails to show by objective evaluation that he manifested a psychosis to a degree of 10 percent by February 1965 (within the first year following his active duty service discharge in February 1964).  38 U.S.C.A. �� 1101, 1110, 1112, 1113; 38 C.F.R. �� 3.307, 3.309.

For the foregoing reasons, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be denied.  The criteria to establish entitlement to service connection for the claimed disorder has not been established, either through medical or lay evidence.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  As such, the appeal is denied.

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied.

____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: DAVID L WIGHT

disposition: granted

text:
Citation Nr: 1235000
Decision Date: 10/10/12    Archive Date: 10/17/12

DOCKET NO.  09-43 509	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1.  Whether new and material evidence has been received sufficient to reopen a previously denied service-connection claim for a bilateral hearing loss disability.

2.  Entitlement to service connection for a bilateral hearing loss disability.

3.  Entitlement to service connection for a disability manifested by imbalance and dizziness, to include peripheral vestibular disorder (claimed as vertigo and Meniere's disease).

4.  Entitlement to an increased disability rating for service-connected spondylolisthesis with left sciatica, currently evaluated 10 percent disabling.

5.  Entitlement to a compensable disability rating for service-connected hypertension.

REPRESENTATION

Veteran represented by:	Christopher Loiacono, Agent

ATTORNEY FOR THE BOARD

V. Chiappetta, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from February 1975 to November 1982.

This matter is before the Board of Veterans' Appeals (the Board) on appeal of April 2007 and July 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

Procedural history

The RO awarded the Veteran service connection for spondylolisthesis of L5/S1 in a March 1983 rating decision, and assigned an initial noncompensable (zero percent disability rating).  In the same decision, the RO denied the Veteran's service-connection claim for a bilateral hearing loss disability.  The Veteran disagreed with his initially assigned lumbar spine disability rating, and the denial of his service-connection claim, and perfected an appeal as to both issues.

During the course of the appeal, in an August 1984 rating decision, the RO increased the Veteran's lumbar spine disability rating from 0 to 10 percent, adding left sciatica as a service-connected component of his spine disability.  The RO also awarded the Veteran service connection for essential hypertension, and assigned an initial noncompensable disability rating.  The Veteran perfected an appeal as to his hypertension disability rating as well.
In a May 1985 decision, the Board denied the Veteran's claims for higher disability ratings for his spondylolisthesis with left sciatica and for his essential hypertension.  The Board also denied the Veteran's service-connection claim for a bilateral hearing loss disability.  Significantly, the Veteran did not appeal the Board's May 1985 decision.

In May 2006, the Veteran filed claims for increased lumbar spine and hypertension disability ratings.  The Veteran also claimed entitlement to service connection for vertigo, and requested that his previously denied service-connection claim for bilateral hearing loss be reopened.

In the above-referenced April 2007 rating decision, the RO denied the Veteran's increased rating claims.  The RO subsequently denied the Veteran's vertigo and hearing loss claims in a July 2007 rating decision.  The Veteran disagreed with these determinations, and perfected an appeal as to each issue.

Clarification of issue on appeal

Although the Veteran's service-connection claim for a bilateral hearing loss disability was last denied by the Board in its unappealed May 1985 decision, the RO neglected to adjudicate the matter of whether new and material evidence had been submitted sufficient to reopen this hearing loss claim prior to deciding the claim on its merits in July 2007.  In doing so, the RO apparently determined that new and material evidence had been submitted that was sufficient to reopen the Veteran's previously denied hearing loss claim, without specifically stating as much.  Notably however, under Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996), before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant; see also Jackson v. Principi, 265 F.3d 1366, 1369   (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. Thus, the Board is required to address the Veteran's previously-denied hearing loss claim first as a claim to reopen, and then if new and material evidence has been submitted, as a claim on the merits. As discussed below, the Board is reopening and granting the Veteran's hearing loss claim herein.

Hearing and Freedom of Information Act (FOIA) requests

The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) via videoconferencing equipment in February 2012.  In a January 10, 2012 letter to the Board, the Veteran's representative specified that the Veteran waived his right to testify at the scheduled hearing, and is requesting that the Board make a decision based on the evidence of record.  The Veteran has not since asked to have this hearing rescheduled.  Accordingly, his hearing request is deemed withdrawn.  See 38 C.F.R. �� 20.702(e); 20.704(e) (2011).

In the same January 10, 2012 correspondence, the Veteran's representative requested a complete copy of the Veteran's claims folder under the Freedom of Information Act (FOIA).  In subsequent correspondence, the Veteran's representative also asked that the record be held open an additional 60 days following receipt of this copy of the claims file so that additional evidence or argument may be submitted.  A copy of the Veteran's claims folder was sent to the Veteran's representative on July 1, 2012.  The Board held the case in abeyance, per the Veteran's representative's request, for an additional 60 days following dispatch of these copies.  The Veteran's representative was notified of this action in a September 7, 2012 letter.  At no time since July 1, 2012 has the Veteran or his representative submitted additional evidence or argument to VA in support of the Veteran's appeal.  The Board finds that the Veteran's recent FOIA requests and his request for the record to remain open an additional 60 days following receipt of the claims file have been honored.  The Board's review of the Veteran's appeal is appropriate at this time.

Remanded issues

The Veteran's increased rating claims for spondylolisthesis with left sciatica, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.
FINDINGS OF FACT

1.  In an unappealed May 1985 decision, the Board denied the Veteran's service-connection claim for a bilateral hearing loss disability.

2.  The evidence associated with the claims folder subsequent to the Board's May 1985 decision has not been previously submitted to agency decisionmakers, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service-connection for a bilateral hearing loss disability.

3.  The evidence of record supports a finding that the Veteran has a current bilateral hearing loss disability that is related to acoustic trauma sustained during his period of active duty military service.

4.  The evidence of record supports a finding that the Veteran has a current imbalance and vertigo disability, namely peripheral vestibular disorder, that is related to acoustic trauma and ear infections sustained during his period of active duty military service.

CONCLUSIONS OF LAW

1.  The May 1985 Board decision denying service connection for bilateral hearing loss disability is final.  38 C.F.R. � 20.1100 (2011).

2.  Since the May 1985 Board decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability; therefore, the claim is reopened.  38 U.S.C.A.    � 5108 (West 2002); 38 C.F.R. � 3.156 (2011).

3.  A bilateral hearing loss disability was incurred in active duty military service.  38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303 (2011).

4.  Peripheral vestibular disorder was incurred in active duty military service.        38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims.

A VCAA notice letter was sent to the Veteran regarding his bilateral hearing loss and vertigo claims in August 2006.  The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is reopening and granting the Veteran's hearing loss claim, and granting his vertigo claim below.  Any potential error on the part of VA in complying with the provisions of the VCAA or the Court of Appeals for Veterans Claims' (the Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), has essentially been rendered moot by the Board's full grant of the benefits sought on appeal addressed in this decision.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. � 3.103 (2011).  Accordingly, the Board will proceed to a decision.

Claim to reopen

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. � 1131 (West 2002);       38 C.F.R. � 3.303 (2011).

In general, VA rating decisions or Board decisions that are not timely appealed are final.  See 38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 20.1100, 20.1103 (2011).  Pursuant to 38 U.S.C.A. � 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. � 3.156(a) (2011).

An adjudicator must follow a two-step process in evaluating a previously denied claim.  First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material.  If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits.  Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled.  See 38 U.S.C.A. � 5108 (West 2002); Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).

The Court has recently stated that the language of VA regulations does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened.  See Shade v. Shinseki, 24 Vet. App 110 (2011).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Analysis

As noted in the Introduction above, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any favorable decision as to this matter which may have been rendered by the RO.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

The Board denied the Veteran's original service-connection claim for a bilateral hearing loss disability in a May 1985 decision.  The Veteran did not appeal this denial, and it became final.  38 C.F.R. � 20.1100  (2011).

In essence, the Board denied the Veteran's claim based on a finding that the record contained no evidence demonstrating that the Veteran had an in-service or post-service hearing loss disability.  See the Board's May 1985 decision, page 6.  The Board's current inquiry will be directed to the question of whether any additionally submitted [i.e. after May 1985] evidence bears directly and substantially upon this prior finding.

Significantly, audiometric testing performed at an April 2007 VA audiological examination revealed that the Veteran does now in fact have a bilateral hearing loss disability for VA purposes, as defined under 38 C.F.R. � 3.385.  See the April 2007 VA examiner's report, pages 2 and 3.  Additionally, in a subsequent report, a May 2007 VA examiner opined that the Veteran's hearing loss is "most likely caused by or a result of acoustic trauma while in the military . . . ."  See the May 2007 VA examiner's report, page 10.

The Board finds that the April 2007 VA examiner's identification of a current hearing disability, and the May 2007 VA examiner's positive nexus opinion constitute new and material evidence as to the previously denied issue on appeal.  Such assessments were not of record prior to the last final denial of the Veteran's claim in May 1985, and they relate to unestablished facts necessary to substantiate the Veteran's hearing loss claim.  As noted above, the credibility of medical assertions, although not their weight, is presumed for the narrow purpose of determining whether sufficient evidence has been submitted to reopen the previously disallowed claim for service connection.  See Justus, supra.  Accordingly, there is sufficient new and material evidence to reopen the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability.   See 38 C.F.R. � 3.156 (2011).

The Board wishes to make clear that although there may be of record new and material evidence sufficient to reopen the Veteran's hearing loss claim, this does not mean that the claim must be allowed based on such evidence.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.

Having stated as much, for reasons which will be expressed below, the Board finds that the probative evidence of record favors a finding that the Veteran's current hearing loss disability is in fact related to his period of active duty service.  Thus, the Veteran's service-connection claim for bilateral hearing loss will be granted herein.

For the sake of economy, the Board will discuss the merits of the Veteran's bilateral hearing loss claim and his vertigo claim in a common discussion below.

Claims for Service Connection

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. � 3.303(d) (2011).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

Under � 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 495-97; see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. �� 1101, 1112, 1113 (West 2002); 38 C.F.R. �� 3.307, 3.309(a) (2011).

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993).

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. � 3.385 (2011).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385 (2011).
When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley, supra.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

In essence, the Veteran contends that he currently has both a bilateral hearing loss disability and a disability manifested by imbalance, dizziness and vertigo that are related to his period of active duty military service dating from 1976 to 1982.  In particular, the Veteran asserts that these disabilities are the result of in-service exposure to acoustic trauma and/or in-service ear infections.

As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two.  See Shedden v. Principi, 381 F.3d at 1167.

With respect to element (1), current disability, it is undisputed that the Veteran currently has a bilateral hearing loss disability for VA purposes under 38 C.F.R. � 3.385.  Indeed, audiometric testing performed at an April 2007 VA examination included the following test results:

HERTZ

500
1000
2000
3000
4000
RIGHT
10
25
30
35
45
LEFT
60
75
75
80
75

As hearing thresholds were noted to be over 40 decibels at 4000 Hz for the Veteran's right ear, and at each frequency level for his left ear, bilateral hearing loss for VA purposes is established.  See 38 C.F.R. � 3.385.

Concerning the Veteran's imbalance and dizziness, a May 2007 VA ear disease examiner reviewed the Veteran's medical history and upon examination of the Veteran, specifically diagnosed the Veteran with peripheral vestibular disorder, noting "[v]estibular weakness on [the] right-side."  See the May 2007 VA examiner's report, page 9.

Accordingly, element (1), current disability is satisfied as to both issues on appeal.

With respect to element (2), in service disease or injury, the Veteran's service treatment records do not reflect that the Veteran sought treatment for, or was diagnosed with any hearing loss disability or vestibular disability during his period of active duty service.  Post-service treatment reports and examinations similarly fail to show the presence of hearing loss for VA purposes within the Veteran's first post-service year.  See 38 C.F.R. � 3.309(a).

The Veteran does however report that he suffered injury to his ears in service through exposure to regular acoustic trauma from aircraft noise in performance of his duties as a helicopter pilot.  He also asserts that he had numerous ear infections during service.  See, e.g., the Veteran's April 2008 Notice of Disagreement, page 3.  The Board finds no reason to doubt the Veteran was exposed to loud noises during service, as his DD-214 confirms service for over six years as a pilot during his period of active duty.  His service treatment records also confirm that he received treatment for otitis media [for which he is now service-connected], and ear infections frequently during his period of active duty service.  See, e.g., the Veteran's May 21, 1975 and December 16, 1975 Medical Recommendations for Flying [noting disqualification on both occasions due to otitis media]; see also the Veteran's June 3, 1980 Chronological Record of Medical Care [indicating otitis media with right ear pain].  The Veteran sought treatment specifically for dizziness and wax build up in the left ear in September 1982, and was diagnosed with otitis externa.  See the Veteran's September 1, 1982 Chronological Record of Medical Care.

Thus, to the extent the Veteran argues that he suffered injuries to his ears during service due to acoustic trauma and frequent ear infections that may have caused his current hearing loss and vertigo disabilities, the Board finds based on the evidence discussed above that element (2), in-service injury, is satisfied as to both issues.

Moving on to crucial element (3), nexus or relationship, with respect to hearing loss, there are two competing medical opinions of record addressing etiology.

Arguably against the Veteran's favor is the opinion of the April 2007 VA examiner, who after diagnosing the Veteran with a bilateral hearing loss disability, opined that the Veteran's hearing loss is less likely than not related to, caused by or a result of hearing loss from military noise exposure.  By way of rationale, the examiner curiously listed a number of factors that appear to support a medical link between the Veteran's service and his hearing loss disability [to include, for example, the Veteran's own report of in-service onset, the presence of military noise exposure with use of hearing protection, treatment of otitis media with ototoxic drugs, and the absence of a history of occupational or recreational noise exposure outside of service], but then concluded that since the Veteran had normal hearing tests during his active duty years, it is less likely as not that the Veteran's hearing loss is related to service.  See the April 2007 VA examiner's report, page 5.

The Board finds the April 2007 VA examiner's medical opinion to be inadequate for adjudicatory purposes.  Indeed, it appears that the VA examiner based her negative nexus opinion exclusively on the fact that the Veteran's hearing was "normal" bilaterally while serving on active duty.  Indeed, it is now well established that even if a Veteran's service treatment records do not contain evidence of bilateral hearing disability for VA purposes in service or at service separation, service connection for bilateral hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service.  Hensley v. Brown, 5 Vet. App. 155 (1993).   Here, the Veteran has contended [and the Board has conceded] that while in service, he was exposed to the acoustic trauma while serving as a helicopter pilot.  Crucially, the April 2007 VA examiner failed to articulate a coherent and reasoned opinion as to whether a link exists specifically between this in-service noise exposure and the Veteran's post-service diagnosis of bilateral hearing loss.  Accordingly, the April 2007 VA examiner's opinion carries little, if any, weight of probative value.  See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008) [the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed].

In contrast, a May 2007 VA examiner analyzed the Veteran's April 2007 audiometric findings, reviewed in detail the Veteran's prior medical history and current complaints, and ultimately concluded that the Veteran's current sensorineural hearing loss disability is "most likely caused by or a result of acoustic trauma" sustained while serving as a helicopter pilot during service.  By way of rationale, the May 2007 VA examiner highlighted the Veteran's seven year history of noise exposure as a helicopter pilot, and noted that the Veteran had no family history of early-onset of hearing loss.  The examiner specified that a history of ear infections can cause conductive hearing loss, but the Veteran in this case in fact has sensorineural hearing loss caused by acoustic trauma.  See the May 2007 VA examiner's report, page 10.

Unlike the April 2007 VA examiner, the May 2007 VA examiner addressed the key question at issue in this case-namely, whether the Veteran's current bilateral hearing loss disability, diagnosed years after service, is as likely as not etiologically related to in-service noise exposure based on a review of all the evidence of record, and not solely on mere observation that the Veteran's in-service hearing tests showed "normal" hearing acuity.  The Board accordingly finds the positive nexus opinion of the May 2007 VA examiner to be highly probative.

In this connection, the Board believes that the evidence of record favors a finding that the Veteran's current bilateral hearing loss disability is related to his in-service noise exposure.  Indeed, the record does not suggest that the Veteran's hearing loss disability could be due to any other post-service event or injury.  Accordingly, element (3), and therefore all elements of service connection are met with respect to the Veteran's bilateral hearing loss claim.  The benefit sought on appeal is granted.

With respect to the Veteran's vertigo claim, there is only one medical opinion of record addressing the etiology of the Veteran's peripheral vestibular disorder.  Indeed, the May 2007 VA examiner reviewed the Veteran's prior medical history, recorded his current complaints, and found that the Veteran's disability is at least as likely as not caused by or a result of his history of acoustic trauma and ear infections while in the military.  The May 2007 VA examiner reasoned that although the Veteran did not have what he called "true" vertigo, he did note that testing showed a drifting to the right suggestive of "right sided vestibular weakness."  The examiner concluded that it was his belief that there was a peripheral vestibular component to the Veteran's imbalance, and that further testing may show the presence of other visual or proprioceptive components as well.       See the May 2007 VA examiner's report, pages 10 and 11.

There is no medical opinion of record contrary to the positive nexus opinion provided by the May 2007 VA examiner.  Indeed, a prior medical evaluation dated prior to the May 2007 VA examination similarly indicated that the Veteran's vertigo was due to "protracted vestibulopathy (inner ear infection)."  See the Veteran's April 4, 2000 Neurology report.

Based on the evidence referenced above, the Board finds that element (3) is satisfied as to the Veteran's vertigo claim as well.  Service-connection for peripheral vestibular disorder is allowed.

(CONTINUED ON NEXT PAGE)

ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for a bilateral hearing loss disability is reopened.

Service connection for a bilateral hearing loss disability is granted.

Service connection for a peripheral vestibular disorder (claimed as vertigo/Meniere's disease) is granted.

REMAND

The Board sincerely regrets the additional delay in adjudicating the Veteran's remaining claims.  However, this remand is necessary to ensure that the Veteran receives all consideration due to him under the law.

The Veteran claims entitlement to increased disability ratings for his service-connected spondylolisthesis with left sciatica, currently evaluated 10 percent disabling, and hypertension, currently evaluated noncompensably (zero percent) disabling.

As noted above, the Veteran filed his increased rating claims in May 2006.  The RO sent the Veteran eight copies of VA Form 21-4142 [Authorization and Consent to Release Information to the Department of Veterans Affairs] in August 2006, and notified the Veteran that if he knew of additional private treatment records that would support his claims for increase, VA would request those records on his behalf if he completed and returned these release forms.  It does not appear that the RO received any response from the Veteran before it adjudicated his increased rating claims in April 2007.  Indeed, the RO indicated that the Veteran did not submit any treatment records pertaining to his spondylolisthesis or hypertension disabilities on pages 2 and 3 of this April 2007 rating decision.

On his April 2008 Notice of Disagreement, the Veteran specifically asserted that he did in fact submit release documents to VA so that records could be obtained on his behalf.  He indicated that he did not think VA followed through with these records requests, because he had to give his VA examiner copies of "several hundred pages of medical visits," over one hundred of which "relate directly to the lower back problem."  See the Veteran's April 16, 2008 Notice of Disagreement, page 1.

The Veteran's VA spine and hypertension examiners do note in their respective February 2007 reports that they reviewed both the Veteran's claims file and medical records, but fail to specify whether the medical records they reviewed included a separate packet of documents submitted directly from the Veteran at the time of the examination that were not seen by the RO.  Although the Veteran has submitted some additional treatment reports to VA since his April 2008 Notice of Disagreement [pertaining mostly to his now service-connected hearing loss and vertigo disabilities], it is unclear whether all of the records the Veteran wishes VA to consider in the adjudication of his increased rating claims were of record at the time of the RO's initial adjudication, and are now of record for review by the Board.

VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody.  38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159(c) (2011).  Moreover, it is the duty of the VA to assist a veteran in obtaining records from Federal agencies, including VA Medical Centers.  See 38 U.S.C.A. � 5103A (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Because the Veteran has put VA on notice that he has submitted a large number of medical records pertaining to his low back and hypertension disabilities to VA examiners for review that do not appear to be incorporated with the Veteran's physical or electronic claims folder, the Board believes the Veteran's increased rating claims must be remanded so that these additional records may be requested and obtained.

The Board wishes to make clear that "[t]he duty to assist is not always a one-way street.  If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193   (1991).  In this connection, on remand, the agency of original jurisdiction (AOJ) should send the Veteran a letter requesting that he submit copies of all medical records in his possession relevant to his low back and hypertension claims that he either submitted to VA examiners in 2007, or wishes to be incorporated to in the record at this time.  The AOJ should send the Veteran multiple copies of VA Form 21-4142 so that the Veteran may have an opportunity to identify what records he submitted to VA examiners in 2007, should he no longer have them in his possession, and should he wish VA to obtain them on his behalf.   As always, the Veteran is free to submit any additional evidence he feels would support his claims.

Accordingly, the case is REMANDED to the RO for the following action:

1. The RO should contact the Veteran and
request that he identify any additional medical treatment he has received for his service-connected low back and hypertension disabilities.  In particular, the RO should request that the Veteran submit copies of any relevant treatment records he has in his possession that he wishes VA to consider in adjudicating his increased rating claims, to include copies of those records he asserts he previously provided to VA spine and hypertension examiners in 2007.

The RO should inform the Veteran that if he no longer has copies of the medical reports he provided the 2007 VA examiners in his possession, he should notify the RO of the dates and locations of any prior treatment he has received for his service-connected spine or hypertension disabilities occurring at VA facilities.
The Veteran should also be provided multiple copies of VA Form 21-4142, Authorization and Consent to Release Information, and should be asked to complete these releases so that VA can obtain private treatment records on his behalf, to include any private records the Veteran submitted to VA examiners in 2007.  The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran, as well as any outstanding relevant VA treatment records.  Efforts to obtain these records should also be memorialized in the Veteran's VA claims folder.

Finally, the RO should also inform the Veteran and his representative that if the Veteran fails to, or chooses not to submit additional evidence in support of his claim, his appeal will be decided based on the evidence currently of record within the Veteran's physical and electronic claims folder.

2.  After completion of the foregoing, and after undertaking any additional development which it deems to be necessary, the RO should then readjudicate the Veteran's increased rating claims.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters 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 Supp. 2011).

______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: KEITH W ALLEN

text: Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. [is remanded]

text:
Citation Nr: 1237000
Decision Date: 10/25/12    Archive Date: 11/08/12

DOCKET NO.  10-30 350	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for a low back disorder.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

R. Kessel, Counsel

INTRODUCTION

The Veteran had active military service from November 1969 to November 1973.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The claim requires further development before being decided on appeal, so the Board is remanding it to the RO via the Appeals Management Center (AMC).

REMAND

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. �� 1110, 1153; 38 C.F.R. �� 3.303, 3.304, 3.306.

The Veteran asserts that he has a low back disability that is the result of his active military service.  Specifically, he states that he fell approximately 20 feet from a telephone pole in December 1971, injuring his low back.  He also claims to have had low back problems ever since that injury, so he believes it is logical to deduce that these ongoing problems are a result of that injury, hence, the reason he is entitled to service connection for this consequent disability.

His service treatment records (STRs) document that he was treated for a complaint of a hurt back in December 1971.  The impression was lumbosacral strain.  Pain medication was prescribed and he was told to avoid heavy lifting.  Although his subsequent October 1973 military separation examination was normal, there is at least indication of an injury to his low back while in service, so relevant trauma.

The question then becomes whether his current low back disability is a result or residual of that trauma in service, as he is alleging.  See 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 that disability and an injury or a disease incurred in service.").

His post-service treatment records show ongoing treatment for low back pain.  In June 2011, he had a VA compensation examination of his spine.  The diagnoses were degenerative joint disease and degenerative disc disease of the lumbar spine.  Thus, there is no disputing he has current low back disability.  The salient question is whether his current low back disability is the result of the injury in service or, instead, other unrelated factors.

The June 2011 VA examiner provided a medical opinion on this determinative issue of causation, but the opinion is not altogether clear.  Initially, the examiner indicated it is at least as likely as not the Veteran's claimed condition is the same as or a result of the lumbosacral strain shown during his active duty.  So this opinion appears to support the claim.  However, in an addendum later that month, the examiner indicated it is less likely than not the claimed condition is the same as or the result of the lumbosacral strain shown during active duty.  So this second (supplemental) opinion is against the claim.  Thus, this examiner has given two diametrically opposing opinions regarding the same claim.

The Board also finds that the underlying explanation (i.e., rationale) for the second opinion is inadequate, and this is where most of the probative value of an opinion is derived, not instead from mere review of the claims file or statement of the ultimate conclusion.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The examiner arrived at the opinion essentially because there is an absence of documented treatment for the low back condition for nearly 10 years after the Veteran separated from military service.  This is true as the medical evidence shows he only began voicing complaints of low back pain and resultantly receiving treatment in 1980 or thereabouts.  Nevertheless, he does not dispute that he did not receive treatment for several years after his service, but he maintains that he still had the low back pain during those intervening years of no treatment and that his claim should not be denied simply because he failed to seek treatment for the pain.  His wife also submitted a statement indicating he has always had low back pain since his injury in service.

The essence of 38 C.F.R. � 3.303(b) is continuity of symptoms, not treatment.  Establishing continuity of symptomatology under 38 C.F.R. � 3.303(b) is an alternative method of showing chronicity (i.e., permanency) of disease or injury in service to, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Thus, besides being contradictory, the VA examiner's second opinion appears to not take into account the Veteran's entire medical history because it mistakenly focused on continuous treatment rather than continuous symptoms.

The Veteran and his wife are competent, even as lay persons, to say he has experienced continuous low back pain since his injury in service.  When eventually deciding this claim, the Board will have to determine whether their lay testimony concerning this also is credible to ultimately have probative value.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Two of the three requirements for service connection can be satisfied under 38 C.F.R. � 3.303(b) by competent and credible evidence demonstrating:  (1) the condition at issue was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent."  Savage, 10 Vet. App. at 497.  However, although the third requirement for service connection does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent."  Id (citations omitted).

The Board therefore finds that this claim must be remanded for still additional medical comment on this determinative issue of causation.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination or opinion for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or notify the claimant why one cannot or will not be provided).

Accordingly, the claim is REMANDED for the following additional development and consideration:

1.  If available, have the June 2011 VA compensation examiner (who also submitted an addendum later that month) provide still additional comment on the nature and etiology of the claimed low back disability.

If, for whatever reason, this examiner is no longer available to comment, then have someone else do it that is equally qualified.  But in this eventuality, it may require having the Veteran reexamined, although this is left to the designee's discretionary as to whether another examination is needed.

Whoever designated is first again asked to identify all current low back disabilities, e.g., lumbosacral strain, degenerative joint disease, degenerative disc disease, etc.  All necessary diagnostic testing and evaluation needed to make this determination, including X-rays, should be performed.

For each current low back disability identified, the examiner is asked to comment on the likelihood (very likely, as likely as not, or unlikely) the disability incepted during the Veteran's military service from November 1969 to November 1973 or is otherwise related or attributable to his service, including especially to a fall from a telephone pole in December 1971 resulting in a diagnosis of lumbosacral strain.

Consideration should be given to the Veteran's complaints referable to this problem during service and after service, even if treatment is not documented.  To reiterate, he is competent to proclaim having experienced relevant symptoms like continuous low back pain since that injury in service, even absent indication of treatment for these symptoms, such as would be documented in actual treatment records.  When eventually deciding this claim, the Board, as fact finder, will have to assess the credibility of his lay statements concerning this to determine whether they are both competent and credible to ultimately have probative value.  So, in the meantime, the examiner is asked to consider the likelihood that the type of injury the Veteran sustained in service, even if not again treated until some 7 or so years after service, could have resulted in the type of low back disability he now has when considering whatever diagnoses are deemed appropriate.

It is imperative the examiner discuss the underlying rationale for all conclusions reached or opinions expressed, if necessary citing to specific evidence in the file.

2.  Then readjudicate this claim in light of this and all other additional evidence.  If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

By this remand, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran until he is notified by VA.  He has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 or 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 Supp. 2012).

_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board 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) (2012).


judge_norm: DEBORAH W SINGLETON

disposition: remanded

text:
Citation Nr: 1238000
Decision Date: 11/06/12    Archive Date: 11/16/12

DOCKET NO.  05-01 389	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to an initial compensable rating for residuals of prostate cancer, status post radical prostatectomy prior to October 29, 2010, an initial rating higher than 10 percent from October 29, 2010 to February 14, 2012, and an initial rating higher than 20 percent from February 15, 2012.

2. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD) prior to July 11, 2007 and an initial rating higher than 50 percent thereafter.

3. Entitlement to an initial rating higher than 10 percent for diabetes mellitus prior to October 12, 2010 and an initial rating higher than 20 percent thereafter.

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

REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady

ATTORNEY FOR THE BOARD

M. Mac, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1955 to June 1957 and from October 1962 to May 1966.

This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A rating decision in February 2008 granted service connection for PTSD and assigned a 30 percent rating.  A notice of disagreement was received in April 2008, a statement of the case was issued in December 2008, and a substantive appeal was timely received in January 2009.  A rating action in December 2008 granted an initial increased rating of 50 percent effective July 11, 2007.

A rating decision in August 2010 granted service connection for diabetes mellitus, assigning a rating of 10 percent, and granted service connection for residuals of prostate cancer, status post radical prostatectomy, and assigned a noncompensable rating.  A rating decision in April 2011 increased the initial rating for diabetes mellitus to 20 percent effective October 12, 2010 and raised the initial rating for residuals of prostate cancer to 10 percent effective October 29, 2010.  A notice of disagreement with the April 2011 rating action was received in July 2011, a statement of the case was issued in October 2011, and a statement which the Board construes as a substantive appeal was received in December 2011.  A rating decision in March 2012 increased the initial rating for residuals of prostate cancer to 20 percent effective February 15, 2012.

As for the Board's jurisdiction over the issue of entitlement to a TDIU, the Board in its remand in July 2010 referred to the decision of the United States Court of Appeals for Veterans Claims (Court) in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Court found that a claim for TDIU was part of the determination of an underlying increased rating claim and cited to Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for the notion that a TDIU claim is raised once a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability.  See 38 C.F.R.
� 3.155(a).  As the Veteran has made it clear in his contentions that he is seeking the highest possible rating for his PTSD and as there is medical evidence indicating that he may be unemployable due to his service-connected PTSD, the Board found that the record reasonably raised a claim of entitlement to TDIU, as part of the current appeal which is inextricably intertwined with the initial rating claim.

A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal.

In July 2010 the Board remanded the issues of an initial higher rating for PTSD and TDIU.  Further development remains necessary and the issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

REMAND

A review of the claims folder shows that there are outstanding medical records pertaining to the Veteran's claims of entitlement to initial higher ratings for residuals of prostate cancer, diabetes mellitus, and PTSD.  Under the duty to assist, an attempt needs to be made to obtain these records and associate them with the claims folder.

In June 2003 the Veteran submitted written authorization for VA to obtain private medical records from the Durham Urology Clinic and Durham County General Hospital for prostate surgery in June 2003.  While there are private medical records in the claims folder from November 1991 to May 2003 from Durham Urology Associates and Durham Regional Hospital showing the Veteran had adenocarcinoma and underwent a radical prostatectomy in June 2000, they do not include a report dated in June 2003 pertaining to prostate surgery.  As the authorization expired within 180 days from the date the Veteran signed it in June 2003, he should be asked to submit a new written authorization for VA to obtain private treatment records pertaining to his prostate cancer.

In compliance with the Board's remand in July 2010, in August 2010 the RO sent a letter to the Veteran asking that he submit written authorization for VA to obtain treatment records from health care providers who have treated him since 2008 for PTSD.  In September 2010 he submitted VA Form 21-4142 authorizing VA to obtain treatment records from L.G., MA LPA along with a statement that he continues to be treated for PTSD by Dr. E.H.  However the Veteran did not submit an authorization to obtain records from Dr. E.H.  As it appears that the Veteran may have misunderstood the instructions in the RO's letter in August 2010, he should be asked to provide written authorization for VA to obtain records from Dr. E.H..

On VA examination in April 2012, the examiner indicated that a review of the VA medical records showed that the Veteran has been attending the VA clinic at Durham since September 28, 2010.  As the only VA medical records in the claims folder are VA examinations, all outstanding pertinent VA treatment records need to be associated with the file.  As the examiner also indicated that the Veteran was currently being monitored for residuals of his prostatectomy at Durham Urology, an attempt should be made to secure these records as well.

The Board notes that the claim for a TDIU is inextricably intertwined with the increased ratings claims currently on appeal.  As such, the Board will defer resolution of the TDIU claim at this juncture, because such action by the Board would be premature pending the additional development of the Veteran's claims for increased ratings, as discussed above.
Accordingly, the case is REMANDED for the following action:

1. Ask the Veteran to identify all health care providers that have treated him for PTSD, residuals of prostate cancer, and diabetes mellitus and to submit or provide written authorization for VA to obtain outstanding private medical records.  In addition to this request, specifically ask the Veteran to provide written authorization for VA to obtain the following: records dated in June 2003 from the Durham Urology Clinic and Durham County General Hospital for prostate surgery, treatment records for PTSD from Dr. E.H., and treatment records for residuals of the prostatectomy from Durham Urology.  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).

2. Associate with the claims folder all pertinent outstanding VA medical records, to include records from the VA clinic in Durham, North Carolina from September 2010 to the present.  If any of these records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. � 3.159(e).

3. After the development is completed, adjudicate the claims on appeal including TDIU.  If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2011).

_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), 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) (2011).