judge_norm: ANDREW J MULLEN

text:
Citation Nr: 0511000
Decision Date: 04/18/05    Archive Date: 04/27/05

DOCKET NO.  02-12 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an effective date earlier than May 13, 1993,
for the award of a total rating based upon individual
unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate
for Veterans Affairs

ATTORNEY FOR THE BOARD

D. J. Drucker, Counsel

INTRODUCTION

The veteran had active military service from November 1944 to
November 1945 and from January 1947 to March 1966, when he
retired.

This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico.

In January 2004, the Board remanded the veteran's claim to
the RO to comply with his request to testify at a hearing
before a Veterans Law Judge.  The veteran was scheduled for a
Travel Board hearing at the RO in June 2004 but, in a May
2004 signed statement, he cancelled that hearing and did not
request that the hearing be rescheduled.  The Board believes
all due process requirements were met with regard to his
hearing request.

The Board notes that, in his December 2001 written statement,
construed by the RO as a claim for an effective date earlier
than May 13, 1993, for the award of a TDIU, the veteran said
that in an October 2, 1998 statement, he "also claimed that
the VA during the period February 1, 1992-July 31, 1997 had
retained $19260 worth of compensation without any
explanation".  He said he had followed up with written and
oral statements but received no response to date.  It does
not appear that the RO has yet responded to the veteran's
query, and the matter is thus referred to the RO for
appropriate clarification and response to the veteran.

Finally, the Board notes that, since May 2004, when the RO
issued a supplemental statement of the case (SSOC) on his
claim, the veteran submitted additional VA and non-VA medical
records, dated from 2001 to 2003.  During that time, the
veteran had a pending claim for entitlement to special
monthly compensation based on aid and attendance or
housebound status, which was denied by the RO in an
unappealed September 2004 rating decision that considered
most of this evidence.

FINDINGS OF FACT

1.	An October 1968 Board decision denied ratings in excess
of 20 percent for the veteran's service-connected
duodenal ulcer and back disabilities, a rating in excess
of 10 percent for chronic sinusitis, and a compensable
rating for a deviated septum.

2.	An August 1981 decision of the Board denied the
veteran's claim for a TDIU.

3.	A February 1988 Board decision denied the veteran's
claim for ratings in excess of 20 percent for discogenic
disease, 10 percent for a right knee disability and for
chronic pansinusitis, and compensable evaluations for
duodenal ulcer disease, a deviated nasal septum, and
otitis externa.

4.	The veteran's combined service-connected disability
rating was established at 70 percent effective from
January 9, 1992.

5.	The veteran submitted an informal claim for a TDIU on
May 13, 1993, and submitted a formal claim for that
benefit on April 11, 1994.

6.	In an April 1997 rating decision, the RO awarded a TDIU,
effective from April 11, 1994, and the veteran appealed
to the Board.

7.	In a March 2000 decision, the Board granted the veteran
an earlier effective date of May 13, 1993, for the award
of a TDIU.  The veteran did not appeal that decision to
the U.S. Court of Appeals for Veterans Claims.

8.	On December 13, 2001, the RO received the veteran's
written statement construed as a new claim for an
effective date in 1972 for the award of his TDIU.

9.	It is not factually ascertainable that the veteran was
totally unemployable due to service-connected
disabilities prior to May 13, 1993.

CONCLUSION OF LAW

The criteria for an effective date earlier than May 13, 1993,
for the award of a total rating based upon individual
unemployability due to service-connected disabilities have
not been meet.  38 U.S.C.A. �� 1155, 5103-5103A, 5107, 5110
(West 2002); 38 C.F.R. �� 3.102, 3.155, 3.157, 3.159, 3.400
(2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Factual Background

The evidence of record reflects that, in April 1966, the
veteran filed an original claim for VA compensation benefits.
Upon review of the pertinent medical evidence, in an August
1966 rating decision, the RO granted service connection for
duodenal ulcer disease, evaluated as 20 percent disabling;
sinusitis, and a lumbar spine disability described as
fibromyositis, lumbar paravertebral muscles and herniated
nucleus pulposus of the lumbar spine, each evaluated as 10
percent disabling; and a deviated nasal septum, right
inguinal hernia, bilateral otitis externa, tuberculoma of the
right upper lobe, and a mortar fragment wound of the third
finger of the left hand, all evaluated as zero percent
disabling (noncompensable).  The veteran's combined
disability rating was 40 percent, effective from April 1,
1966.

In May 1967, the veteran submitted a notice of disagreement
(NOD) as to the RO's rating action and, in July 1967, a
statement of the case (SOC) was issued.  In his August 1967
substantive appeal, the veteran said his condition was such
that he was unable to work.  He reported that he was unable
to drive a truck and could not stand for a long period due to
his service-connected back disability.  In November 1967, the
veteran testified at a personal hearing at the RO.  He said
he had not worked in the last year, and was supporting his
family with a small military pension.

In January 1968, the veteran underwent VA examination.  Upon
review of these medical findings, in an April 1968 rating
decision, the RO amended the August 1966 rating and awarded a
20 percent disability evaluation for the veteran's service-
connected back disability, effective from May 17, 1967.  His
combined disability evaluation was then 40 percent, effective
from April 1, 1966.

In an October 1968 decision, the Board denied ratings in
excess of 20 percent for the veteran's service-connected
duodenal ulcer and back disability, a rating in excess of 10
percent for chronic sinusitis, and a compensable rating for
the deviated nasal septum.

Thereafter, in an unappealed August 1975 rating decision, the
RO denied increased ratings for the veteran's service-
connected ulcer and back disabilities.  The RO reached this
conclusion upon review of VA outpatient records dated in 1974
and 1975.  In August 1975, the veteran filed his NOD as to
the RO's action and, in September 1975, underwent VA
examination.

In December 1976, the veteran filed an income-net worth
statement (VA Form 21-527) on which he said he had been self-
employed, and last worked in October 1974.  He said he was
unable to work due to a nervous stomach and right leg and
back disabilities.

Upon review of VA outpatient records and a February 1976 VA
examination report, in April 1976, the RO confirmed and
continued the existing disability evaluations and found that
the veteran's service-connected conditions did not preclude
his engaging in some kind of gainful employment.  The RO also
denied the veteran's claim for service connection for a right
knee disorder.  In May 1976, the veteran submitted his NOD as
to the denial of service connection for a right knee
disorder.

A November 1976 rating decision confirmed and continued the
assigned disability ratings.  In October 1977, the RO
received the veteran's claim for an increased rating for his
service-connected back disorder.  In April and November 1978,
the RO confirmed and continued the assigned disability
ratings.  In January 1979, the veteran submitted an NOD as to
the assigned ratings and the RO's conclusion that he was not
rendered unemployable by his disabilities.  He submitted
three private medical statements in support of his claim,
including a January 1978 written statement from J.B.M.T.,
M.D., who diagnosed low back syndrome, degenerative joint
disease of the hip and spine joints, brachial plexus injury
due to degenerative joint disease of the hip and spine,
herniated nucleus pulposus, and spinal bifida occulta.  Dr.
T. said that, because of the permanent and progressive
character of the veteran's disorders, he had permanent and
total disability for normal duties.

In May 1979, the RO provided the veteran with an SOC, and the
veteran submitted additional medical evidence, including a
May 1978 statement from J.J.F.R., M.D., to the effect that
the veteran was totally disabled due to the diagnosed
disorders noted above.  In July 1979, the RO received the
veteran's substantive appeal.

In a November 1980 decision, the Board granted the veteran's
claim for service connection for a right knee disability and
remanded his claim for a TDIU.  In a March 1981 rating
decision, the RO implemented the Board's decision and awarded
a 10 percent disability evaluation for the service-connected
right knee disability, effective from December 1975, and a 20
percent evaluation, effective from February 1981.  The
veteran's combined disability evaluation was 50 percent
effective from December 10, 1975.

In an August 1981 decision, the Board denied the veteran's
claim for a TDIU.

Thereafter, in an unappealed July 1982 rating decision, the
RO denied the veteran's claims for increased ratings for his
back, right knee, ulcer, and sinus disabilities, and his
claim for a TDIU.

In May 1983, the veteran submitted a new claim for a TDIU,
which was denied by the RO in a February 1984 rating
decision.  In April 1984, the veteran submitted an NOD which
addressed the matter of a TDIU.  He also submitted an October
1982 medical report from J.R.H., M.D., who diagnosed cervical
and lumbar radiculopathy, cervical and lumbar discogenic
disease, fibromyositis-cervical and dorsolumbar, bilateral
carpal tunnel syndrome, spondyloarthritis of the vertebral
column, migraine, capsulitis of the right shoulder, and
depressive neurosis.  The physician said the veteran was
unfit to perform any remunerative work in industry.  In
September 1984, the RO provided the veteran with an SOC that
included the issue of a TDIU.  The veteran's October 1984
substantive appeal did not address the matter of entitlement
to a TDIU.

As noted in the Board's March 1986 decision, the veteran had
limited his substantive appeal, and had not included the
matter of a TDIU in his appeal of the February 1984 rating
decision, thus rendering that determination final.

Thereafter, a February 1988 Board decision denied the
veteran's claims for increasing ratings for discogenic
disease (above 20 percent), a right knee disability and
pansinusitis (above 10 percent for each disability) and
compensable ratings for duodenal ulcer disease, a deviated
nasal septum, and otitis externa.

In January 1992, the RO received the veteran's claim for
increased ratings for his service-connected spinal disc,
right knee, inguinal hernia, sinus, and nose disabilities.
Upon review of VA outpatient records, dated in 1990 and 1991,
and findings of a March 1992 VA examination, in a March 1993
rating decision, the RO granted a 10 percent evaluation for
his ulcer disability, effective from January 9, 1992.  The
combined disability rating was 40 percent from September 1,
1985, and 50 percent from January 9, 1992.

In an NOD received by the RO on May 13, 1993, the veteran
said his service-connected intervertebral disc condition
rendered him incapable of doing any type of work.

In April 1994, the RO received the veteran's formal claim for
a TDIU (VA Form 21-8940) on which he indicated that he had
last worked in 1975, at which time he asserted he became too
disabled to work.  It was noted that the veteran was 72 years
old, had completed four years of high school education, and
had special training as a refrigerator technician.  He stated
that his discogenic disease and other disabilities of which
the VA was aware rendered him incapable of any gainful
employment.

In a March 1996 rating decision, the RO granted a 40 percent
disability evaluation for paravertebral fibromysitis, with
discogenic disease at L4-L5 and with bilateral radiculopathy,
effective from January 9, 1992.  The veteran's combined
disability evaluation was 60 percent, effective from January
9, 1992.

In June 1996, the veteran submitted a new VA From 21-8940
and, in a June 1996 rating decision the RO denied the
veteran's claim for a TDIU.  The veteran perfected an appeal
as to the RO's denial.  He submitted additional medical
evidence in support of his claim, including an August 1996
medical report from Dr. J.J.F.R., who said that, from a
musculo-skeletal view, the veteran was totally and
permanently disabled.

In an April 1997 rating decision, the RO awarded a 60 percent
evaluation for the veteran's service-connected back
disability, effective from January 9, 1992.  His combined
disability evaluation was 70 percent, effective from January
9, 1992, and the RO also awarded a TDIU, effective from April
11, 1994.

In an August 1997 written statement, the veteran objected to
the effective date of the TDIU claim and argued that a more
appropriate date was in 1972 or before.  In support of his
contentions, he pointed to medical statements from Drs. R.R.
(dated in January 1972), J.B.M (dated in January 1978), M.S.
and J.F.R. (dated in March 1978), and J. R.H. (dated in
October 1982).  The veteran perfected his appeal as to the
matter of an effective date earlier than April 11, 1994, for
the award of a TDIU.

In a decision of March 2000, the Board granted an effective
date of May 13, 1993, for the TDIU award.  The Board held
that the veteran's May 13, 1993, NOD could reasonably be
considered as an informal claim of entitlement to a TDIU, and
that he had subsequently filed a formal claim in April 1994.
The veteran was advised of his right to file an appeal of the
Board's decision with the United States Court of Appeals for
Veterans Claims.  He did not appeal to the Court.

In December 2001, the RO received the veteran's written
statement in which he appeared to again raise a claim for an
effective date in 1972 for his TDIU.

Subsequently, the veteran submitted VA and private medical
records dated from 2001 to 2003.
II.  Legal Analysis

A.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA � 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. �� 5103, 5103A (West 2003)).  In addition, VA
has published regulations to implement many of the provisions
of the VCAA.  See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. �� 3.102, 3.156(a), 3.159,
and 3.326(a) (2004)).

The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA.  See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1344 (Fed. Cir. 2003)
(but see Public Law No. 108-183, � 701, 117 Stat. 2651, 2670-
71 (Dec. 16, 2003); Conway v. Principi, 353 F.3d 1359 (Fed.
Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
See also VAOPGCPREC 11-00 (Nov. 27, 2000); VAOPGCPREC 7-2003
(Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec. 22, 2003);
VAOPGCPREC 1-2004 (Feb. 24, 2004).

Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal.  We are
aware that in Pelegrini, cited above, the U.S. Court of
Appeals for Veterans Claims stated that, under the VCAA,

the Secretary must provide notice . . . that
informs the claimant of any information and
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.  Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim."  38 C.F.R.
� 3.159(b)(1); see 38 U.S.C. � 5103A(g) . . . .

Pelegrini, supra, at 121.

The VA General Counsel has issued a precedent opinion
interpreting the Court's decision in Pelegrini.  In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,

the Board must ensure that complying notice is
provided unless the Board makes findings regarding
the completeness of the record or as to other
facts that would permit [a conclusion] that the
notice error was harmless, including an
enumeration of all evidence now missing from the
record that must be a part of the record for the
claimant to prevail on the claim.

VAOPGCPREC 7-2004 (July 16, 2004).  Considering both the
decision of the Court in Pelegrini and the opinion of the
General Counsel, the Board finds that the requirements of the
VCAA have been satisfied in this matter, as discussed below.

In January 2002, the RO provided the appellant with
correspondence essentially outlining the duty-to-assist
requirements of the VCAA.  In addition, the appellant was
advised, by virtue of a detailed July 2002 SOC and by an SSOC
issued during the pendency of this appeal, of the pertinent
law, and what the evidence must show in order to substantiate
his claim.  We, therefore, believe that appropriate notice
has been given in this case.  The Board notes, in addition,
that a substantial body of lay and medical evidence was
developed with respect to the appellant's claim, and that the
SOC and SSOC issued by the RO clarified what evidence would
be required to establish an effective date earlier than May
13, 1993 for the award of his TDIU.  The appellant responded
to the RO's communications with additional evidence and
argument, thus curing (or rendering harmless) any previous
omissions.  Furthermore, the May 2004 SSOC contains the new
reasonable doubt and duty-to-assist regulations codified at
38 C.F.R. �� 3.102 and 3.159 (2004).  See Charles v.
Principi, 16 Vet. App. 370, 373-74 (2002).

The Board concludes that the notifications received by the
appellant adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993), infra;
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)).  Likewise, it
appears that all obtainable evidence identified by the
appellant relative to his claim has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, that would need to be obtained for a
fair disposition of this appeal.  Thus, for these reasons any
failure in the timing or language of VCAA notice by the RO
constituted harmless error.

Accordingly, we find that VA has satisfied its duty to assist
the appellant in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under both
former law and the VCAA.  The Board, therefore, finds that no
useful purpose would be served in remanding the matter being
decided herein for yet more development.  Such a remand would
result in unnecessarily imposing additional burdens on VA,
with no additional benefit flowing to the veteran.  The Court
of Appeals for Veterans Claims has held that such remands are
to be avoided.  See Winters v. West, 12 Vet. App. 203 (1999)
(en banc), vacated on other grounds sub nom. Winters v.
Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski,
1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).  In fact, the Court has stated, "The VCAA
is a reason to remand many, many claims, but it is not an
excuse to remand all claims."  Livesay v. Principi, 15 Vet.
App. 165, 178 (2001) (en banc).

It is the Board's responsibility to evaluate the entire
record on appeal.  See 38 U.S.C.A. � 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.  38
U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102 (2004).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that a veteran need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail.  The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.

B.  Discussion

The veteran essentially contends that he became unable to
secure or follow substantially gainful employment in 1972.

In the present case, the record reflects that, in an August
1981 decision, the Board denied the veteran's claim for a
TDIU.  Thereafter, in an unappealed July 1982 rating
decision, the RO denied the claim for a TDIU.  In February
1984, the RO again denied the veteran's claim for a TDIU, and
the veteran appealed the RO's determination.  A September
1984 SOC included the TDIU issue but, as noted in the Board's
March 1986 decision, the veteran then limited his substantive
appeal, and did not include the TDIU issue in his appeal of
the February 1984 rating.  As a result, the decision denying
TDIU became final.  In February 1988, the Board denied the
veteran's claim for increased ratings for his service-
connected back, right knee, ulcer, sinusitis, deviated
septum, and otitis externa disabilities.

In January 1992, the RO received the veteran's claim for an
increased rating for his service-connected disabilities and,
in March 1993, the RO awarded an increased rating for his
ulcer disability.  The veteran submitted a timely NOD in May
1993 in which he said his back disability rendered him
incapable of any kind of work.

In April 1994, the RO received the veteran's formal claim for
a TDIU.

Ultimately, in April 1997, the RO awarded a 60 percent
evaluation for the veteran's service-connected back
disability, effective from January 9, 1992.  The veteran's
combined disability evaluation was 70 percent, effective from
January 9, 1992.  A TDIU was also awarded at that time,
effective from April 11, 1994.  The veteran perfected his
appeal as to the effective date of the award of his TDIU, and
argued that the more appropriate date was in 1972 or 1974.

As duscussed above, in the March 2000 decision, the Board
granted an effective date of May 13, 1994, for the award of
the TDIU.  The analysis therein involved consideration of the
veteran's ability or inability to gain or retain employment
as part of the criteria considered.  The Board then found as
a matter of fact that the veteran had filed an informal claim
for a TDIU on May 13, 1994.

The veteran did not appeal the Board's March 2000 decision to
the Court of Appeals, and hence the decision of the Board
became final.  Final Board decisions, including decisions as
to the degree of disability, will be accepted as correct in
the absence of clear and unmistakable error.  See 38 U.S.C.A.
� 7104 (West 2002); 38 C.F.R. � 20.1100 (2004).

Thus, while the Board must carefully consider all the
evidence in the file, it is precluded from reaching beyond a
final Board decision to assign an effective date earlier than
May 13, 1993, for the award of a TDIU based upon evidence
that was of record at the time the Board decision was issued.
See Hazan v. Gober, 10 Vet. App. 511 (1997).

A TDIU claim is a claim for increased compensation, and the
effective date rules for increased compensation apply to a
TDIU claim.  Hurd v. West, 13 Vet. App. 449 (2000).

Despite the history of the appellant's claim for a TDIU
leading to the instant decision, it is evident that this
appeal as to the effective date assignable for his TDIU rests
on two separate, relatively simple determinations.  See 38
C.F.R. � 3.400(o)(1), (2).  First, there needs to be a
finding as to the date on which the appellant initiated his
TDIU claim by formal or informal claim.  Second, there needs
to be a finding regarding on what date the appellant's
entitlement to a TDIU arose, that is, at what point in time
did his service-connected disabilities, alone, render him
unable to secure or follow a substantially gainful
occupation?  See 38 U.S.C.A. �� 5110, 5111(b); 38 C.F.R. ��
3.151, 3.400(o), 4.15, 4.16.

The veteran seeks an effective date earlier than May 13,
1993, for the award of a TDIU, and argues that the proper
date for the award should be in 1972, when he argues that he
was rendered unemployable by his disabilities.

A TDIU claim is an alternate way to obtain a total disability
rating without recourse to a 100 percent evaluation under the
Rating Schedule.  See, e.g., Parker v. Brown, 7 Vet. App.
116, 118 (1994).  The RO received the veteran's current
formal claim for TDIU on April 11, 1994.  As with a schedular
rating, the Board may look to the evidence regarding his
service-connected disabilities dated during the one-year
period prior to his claim, to determine whether it was
"ascertainable that an increase in disability had
occurred."  38 C.F.R. � 3.400(o)(2).

The regulatory scheme for TDIU provides that VA will grant a
total disability rating for compensation purposes based upon
individual unemployability when the medical evidence shows
that the veteran is precluded from obtaining or maintaining
gainful employment consistent with his education and
occupational experience, by reason of his service-connected
disabilities.  38 C.F.R. �� 3.340, 3.341, 4.16.  In
determining whether the veteran is entitled to TDIU, neither
his non-service-connected disabilities nor his age may be
considered.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Consideration of TDIU is appropriate where the schedular
rating is less than total, when it is found that the disabled
person is unable to secure or follow a substantially gainful
occupation as a result of a single service-connected
disability ratable at 60 percent or more, or as a result of
two or more disabilities, provided at least one disability is
ratable at 40 percent or more and there is sufficient
additional service-connected disability to bring the combined
rating to 70 percent or more.  38 C.F.R. �� 3.340, 4.16(a).

The VA General Counsel has concluded that the controlling VA
regulations generally provide that veterans who, in light of
their individual circumstances, but without regard to age,
are unable to secure and follow a substantially gainful
occupation as a result of service-connected disability shall
be rated totally disabled, without regard to whether an
average person would be rendered unemployable by the
circumstances.  Thus, the criteria include both objective and
subjective standards.  It was also determined that
"unemployability" is synonymous with inability to secure
and follow a substantially gainful occupation.  VAOPGCPREC
75-91 (Dec. 27, 1991).

In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the
Court addressed the issue of entitlement to an earlier
effective date in a TDIU claim, and held that the applicable
statutory and regulatory provisions, fairly construed,
require the Board to look at all communications in the file
that might be interpreted as applications or claims, formal
or informal, for increased benefits and, then, to all other
evidence of record to determine the "earliest date as of
which," within the one-year prior to the claim, the increase
in disability was ascertainable.  38 U.S.C.A. � 5110(b)(2);
38 C.F.R. �� 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3
Vet. App. 129, 134 (1992).

The sole fact that a veteran is unemployed for non-service-
connected reasons, or has difficulty obtaining employment
because of economic circumstances, is not enough for a TDIU
grant.  A high schedular rating, in itself, is recognition
that the impairment makes it difficult to obtain and retain
employment.  The question is whether the veteran is capable
of performing the physical and mental acts required by
employment, not whether the veteran can, in fact, find
employment.  See 38 C.F.R. �� 4.1, 4.15.

In discussing the unemployability criteria, the Court has
indicated that, in essence, the unemployability question,
that is, the veteran's ability or inability to engage in
substantially gainful activity, has to be looked at in a
practical manner, and that the thrust is whether a particular
job is realistically within the capabilities, both physical
and mental, of the appellant.  See Moore v. Derwinski, 1 Vet.
App. 83 (1991). Marginal employment shall not be considered
substantially gainful employment, and generally shall be
deemed to exist when a veteran's earned income does not
exceed the amount established by the U.S. Department of
Commerce, Bureau of the Census, as the poverty threshold for
one person.  Marginal employment may also be held to exist,
on a facts-found basis, when earned annual income exceeds the
poverty threshold.  38 C.F.R. � 4.16(a).  See Faust v. West,
13 Vet. App. 342 (2000).

As noted above, a claim for TDIU is, in essence, a claim for
an increased rating.  Norris v. West, 12 Vet. App. 413, 420
(1999).

The date of VA medical reports may be used to establish the
effective date of entitlement to an increased rating in a
case where service connection is already established.  See 38
C.F.R. � 3.157(b)(1) (2004).  Although any communication or
action indicating an intent to apply for one or more benefits
administered by VA "may be considered an informal claim,"
pursuant to 38 C.F.R. � 3.155(a), even an informal claim for
VA benefits "must identify the benefit sought."  Brannon v.
West, 12 Vet. App. 32, 35 (1998).

In Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the
veteran submitted evidence of a medical disability and made a
claim for the highest rating possible, and had also submitted
evidence of unemployability.  The U.S. Court of Appeals for
the Federal Circuit held that the submitted evidence had
sufficiently identified the benefit sought under 38 C.F.R. �
3.155(a) and that VA was obliged to treat the evidence of
unemployability as a claim for a total disability rating
based on individual unemployability due to service-connected
disability (TDIU).  Id. at 1384.

In this case, as noted above, the veteran's claim for a TIDU
that was received by the RO in 1979 was denied in an August
1981 Board decision.  His subsequent claims for TDIU were
denied by the RO in unappealed rating decisions in July 1982
and February 1984.

In its April 1997 rating decision, the RO awarded a 60
percent disability rating for the veteran's service-connected
lumbar spine disability, effective from January 9, 1992.  His
combined disability rating was then 70 percent.  The RO
awarded a TDIU, effective from April 11, 1994.

As explained above, in its March 2000 decision, the Board
concluded that an effective date of May 13, 1993, was
warranted for the award of a TDIU.  In reaching this
decision, the Board considered the evidence of record and
concluded that an NOD filed by the veteran on May 13, 1993
(in which he argued that his service-connected back
disability rendered him "incapable of any type of work"),
should be considered to have been an informal claim for a
TDIU.  After that grant of an earlier effective date by the
Board, the veteran did not appeal the Board's decision to the
Court of Appeals for Veterans Claims, so that decision was
final.

The Board finds it is not factually ascertainable that the
veteran was unemployable because of his service-connected
disabilities in the year prior to the RO's receipt of the
informal TDIU claim on May 13, 1993.  See 38 C.F.R. �
3.400(o)(2).  In essence, a review of all the evidence
indicates the veteran may indeed have been unemployable for
many years prior to May 13, 1993, but does not establish that
within that one-year period he underwent an increased in
disability factually demonstrating on a specific date within
that year he was unemployable because of his service-
connected disabilities.  See Hazan v. Gober, 10 Vet. App. 520
(veteran is collaterally estopped from relitigating the same
issue based upon the same evidence, albeit for a different
purpose).  Here, it appears that the veteran evidently seeks
to have the same issue, an earlier effective date assigned
for his TIDU, readjudicated, based upon the same evidence
previously considered by the Board in its March 2000
decision.  Therefore, there is no basis in VA law by which an
earlier effective date may be awarded.

There is little doubt that the veteran believes that he was
totally disabled since 1972. However, the issue before the
Board is whether he was unemployable due solely to his then
service-connected disabilities.  See Blackburn v. Brown, 4
Vet. App. 395, 398 (1993) (entitlement to a TDIU must be
established solely on the basis of impairment arising from
service-connected disorders).

The Board finds that the objective evidence of record
preponderates, under the law, against a finding that an
effective date earlier than May 13, 1993, is warranted for
the award of a TDIU.  As noted, while the veteran first met
the requisite disability rating in January 1992, the medical
evidence of record did not reflect that he was unable to work
solely due to service-connected disabilities, nor had he
filed a claim for that benefit.  It was not until the May 13,
1993 NOD, that the veteran raised the matter of his
unemployability due to his service-connected disabilities,
and not until April 1, 1994, that he submitted a formal claim
for a TDIU (which was granted by the RO in April 1997,
effective from April 11, 1994).

However, in the March 2000 decision, the Board found that the
veteran's May 13, 1993, NOD should be construed as an
informal claim for a TDIU and that was the proper effective
date for the award.  This was based upon a thorough review of
the evidence, including the veteran's statements and the
objective medical evidence of record.  The Board now
considers this evidence, the previous Board decision, and the
veteran's recent written statements and evidence submitted
since that decision, in support of his claim, in accordance
with Hazan, supra.  The evidence, in aggregate, simply does
not establish that the veteran was totally unemployable as a
result of his service-connected disabilities prior to May 13,
1993.  Rather, the totality of the evidence demonstrates that
he had other non-service-connected disabilities, including
cervical disorders, depressive neurosis, and carpal tunnel
syndrome, that affected his ability to work.

The Board has carefully considered the veteran's statements
submitted in support of his most recent claim for an earlier
effective date for the award of a TDIU.  Although the
veteran's statements are probative of his symptomatology and
his earnings and efforts to find work, they are not competent
or credible evidence of his level of disability or his actual
ability to work as related to his service-connected
disabilities.  See, e.g., Routen v. Brown, 10 Vet. App. 183,
186 (1997) ("a layperson is generally not capable of opining
on matters requiring medical knowledge"), aff'd sub nom.
Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied,
119 S. Ct. 404 (1998).  The veteran, on his own, lacks the
medical expertise to establish his unemployability due to his
service-connected disabilities.

Accordingly, the Board finds that there is no factual basis
upon which to assign an effective date earlier than May 13,
1993, for the award of a TDIU.  In light of the Board's March
2000 unappealed decision, and Hazan v. Gober, supra, the
Board is of the opinion that the objective evidence of record
does not reflect that the veteran was unable to obtain and
retain gainful employment as a result of his service-
connected disabilities prior to that date.  In reaching this
determination, the Board has carefully considered all the
evidence of record including (1) evidence received subsequent
to the March 2000 prior final Board decision that awarded the
May 13, 1993, effective date for the TDIU; and (2) the
evidence considered that might, in light of evidence not
previously of record at the time of the prior, final
decision, constitute sufficient evidence of unemployability
due to service-connected disabilities within one year prior
to the May 13, 1993, informal claim for TDIU.

Neither the veteran nor his accredited representative has
produced such evidence, or identified any evidence not yet
obtained that would show that it was factually ascertainable
that the veteran became entitled to a TDIU at any time within
the one-year preceding his May 13, 1993 TDIU informal claim,
or any time prior to that date.  Therefore, the Board
concludes that the veteran is not entitled to an effective
date earlier than May 13, 1993, for the award of a TDIU.

ORDER

An effective date earlier than May 13, 1993, for the award of
a TDIU is denied.

___________________________
	ANDREW J. MULLEN
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: V L JORDAN

disposition: remanded

text:
Citation Nr: 0512000
Decision Date: 04/29/05    Archive Date: 05/11/05

DOCKET NO.  02-09 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas

THE ISSUE

Entitlement to assignment of a higher rating for hepatitis C,
currently rated as 10 percent disabling.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Motrya Mac, Associate Counsel

INTRODUCTION

The veteran had active duty service from July 1966 to
February 1970.

This case is before the Board of Veterans' Appeals (Board) on
appeal from an August 2001 rating decision by a Regional
Office (RO) of the Department of Veterans Affairs (VA).

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify you the
veteran if further action is required on his part.

REMAND

During the veteran's March 2005 Board hearing, the veteran's
representative claimed that the veteran's service-connected
hepatitis C has increased in severity since his last VA
examination.  While a new examination is not required simply
because of the time which has passed since the last
examination, VA's General Counsel has indicated that a new
examination is appropriate when there is an assertion of an
increase in severity since the last examination.  VAOPGCPREC
11-95 (1995).

During the hearing, the veteran's representative indicated
that there may be outstanding records at the Audie L. Murray
and Frank Tejada VA facilities in San Antonio, TX.  Any
outstanding VA medical records need to obtained and
associated with the claims folder.

Accordingly, this matter is REMANDED to the RO for the
following actions:

1.  The RO should contact the Audie L.
Murray and Frank Tejada VA medical
facilities and request the veteran's
medical records pertaining to his
hepatitis C claim.  Afterwards, the
records should be associated with the
claims folder.

2.  The veteran should be scheduled for
an appropriate VA examination to
determine the current nature and severity
of his service-connected hepatitis C.  It
is imperative that the claims file be
made available to and be reviewed by the
examiner in connection with the
examination.  The examination should
include any diagnostic tests or studies
for an accurate assessment of the
disorder.  Examination findings should be
reported to allow for evaluation of the
disability under applicable VA rating
criteria.

3.  After completion of the above and any
other development deemed necessary, the
RO should review the expanded record and
determine if the benefit sought can be
granted.  Unless the benefit sought is
granted, the veteran and his
representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond.  Thereafter, the case should be
returned to the Board for appellate
review.

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

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate

action must be handled in an expeditious manner.  See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, � 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. ��
5109B, 7112).

_________________________________________________
V. L. Jordan
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) (2004).


judge_norm: P M DILORENZO

disposition: denied

benefit: healthcare

text:
Citation Nr: 0513000
Decision Date: 03/16/05	Archive Date: 09/19/05

DOCKET NO. 02-20 236A                       DATE MAR 16 2005
On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison,_Montana

THE ISSUE

Entitlement to payment or reimbursement of private medical expenses incurred at the Lexington Medical Center from February 4, 2002, to February 6, 2002.

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran had active duty from February 1963 to June 1963.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from the Network Authorization Office (NAO) of the Department of Veterans Affairs Medical Center (V AMC) in Fort Harrison, Montana, based on a June 2002 decision by the Columbia, South Carolina, Department of Veterans Affairs Regional Office (RO). The veteran sought reimbursement for medical care from January 27, 2002, through February 6, 2002. It was determined that care and payment at the Lexington Medical Center was authorized for treatment from January 27, 2002, to February 3, 2002. Payment or reimbursement for the cost of private medical expenses incurred from February 4, 2002, to February 6, 2002, was denied, however, because the patient was stable at that point.

At the veteran's request, a travel Board hearing was scheduled for November 5, 2004; however, the veteran failed to report for the hearing and did not provide a reason for his failure to appear. The Board considers that the veteran has withdrawn his request. See 38 C.F.R. � 20.704 (2004). The Board, therefore, will proceed based upon the evidence of record.

In February 2005, the Board wrote to the appellant in order to clarify representation. He was provided appropriate VA forms to enable him to indicate his choice of an attorney/agent or service organization. He was advised that if the Board did not hear from him within 30 days, it would assume that he did not desire representation and that appellate review would resume. He did not respond.

FINDINGS OF FACT

1. The veteran incurred medical expenses at a private medical facility from January 27, 2002, to February 6, 2002.

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2. VA payment or reimbursement of the costs of the private medical care provided on January 27, 2002, to February 6, 2002, was not authorized prior to the veteran's undergoing that treatment.

3. The private medical care provided from January 27, 2002, to February 6, 2002, was not for, or adjunct to, a service-connected disability.

4. Following emergency and intensive care treatment from January 27, 2002, to February 3, 2002, the veteran's condition stabilized and he was moved to a regular floor in the hospital at the private facility; he could have safely been transferred to a VA medical facility.

CONCLUSIONS OF LAW

1. In the absence of prior authorization for payment of the private medical expenses incurred from February 4, 2002, to February 6, 2002, reimbursement for such expenses is not warranted. 38 U.S.C.A. � 1703 (West 2002); 38 C.F.R. � 17.54 (2004).

2. The criteria for payment or reimbursement of unauthorized medical expenses incurred from February 4, 2002, to February 6,2002, have not been met. 38 U.S.C.A. �� 1725, 1728 (West 2002); 38 C.F.R. �� 17.120,17.1000-.1008 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

On November 9,2000, the Veterans Claims Assistance Act of2000 (VCAA) (codified at 38 U.S.C.A. � 5100 et seq.) became law with significant changes in VA's duty to notify and assist. Regulations implementing the VCAA have also been published. 38 C.P.R. �� 3.102, 3.156(a), 3.159, 3.326(a). There is no indication in the VCAA that Congress intended the act to revise the unique, specific claim provisions of Chapter 17, Title 38 of the United States Code. See 38 C.F .R.

- 3

�� 17.123-17.132; see also Barger v. Principi, 16 Vet. App. 132, 138 (2002). In the circumstances of this case, there is no further duty to notify or to assist.

It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. � 7l04(a) (West 2002). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. � 5l07(b) (West 2002); 38 C.F.R. � 3.102 (2004).

The veteran is seeking reimbursement for the costs of medical treatment received during an admission to Lexington Medical Center from February 4, 2002, to February 6, 2002. The V AMC has authorized payment for the period from January 27, 2002, to February 3, 2002, because he was undergoing emergency treatment at Lexington Medical Center's emergency department and intensive care unit for spontaneous intracranial hemorrhage, left parietal occipital. The record reflects that
the veteran came to the emergency room of that facility on January 27,2002, via emergency medical services after feeling weak all day, having had an episode of weakness where he could not walk. He also possibly had an episode of syncope. The veteran was confused on arrival, but denied headaches, chest pain, shortness of breath, numbness, abdominal pain, focal weakness or numbness, or bowel or bladder changes. He had a seizure in the emergency department and was intubated and medicated. The provisional diagnosis was acute right parietal and intracranial hemorrhage. The veteran was transferred to the intensive care unit January 28, 2002. The doctor who treated him noted unusual deep-seated hemorrhage which could be an underlying neoplasm or arteriovenous malformation. He was kept heavily medicated and monitored, initially, and was hot given an MRI until the clotting from the cerebral edema allowed for visualization. Alcohol use was also noted and at one point during the first few days, the veteran was thought to be experiencing confusion and delirium from alcohol withdrawal.

It was noted that, by day 8 (February 3, 2002), the veteran was remarkably lucid, conversant and much improved. He was able to follow complex commands without obvious neurological deficits. The medication mannitol was discontinued and he was transferred to the regular floor and begun on a regular diet. On the regular

- 4

floor, he was somewhat more demanding but cooperative. He had no headaches or pain. He was considered to be on his usual course. He was observed to be on the phone frequently, conducting business and talking to family. He was discharged with his family and given prescriptions of Dilantin, Haldol, and Cipro, with instructions to follow up in two weeks. He was told to discontinue alcohol use.

According to the Statement of the Case (SaC), VA received claims for payment of medical expenses incurred for services provided at Lexington Medical Center for the period from January 27, 2002, through February 6, 2002, initially in March 2002. Additional documentation was received from Lexington Medical Center and its associated providers and insurance providers in April, May and June 2002. In June 2002, the claim for payment of medical expenses was approved only to February 3, 2002, the point of stabilization. The claim was denied as to the time period from February 4, 2002, through February 6, 2002, because the veteran was stable at that time and could have been moved to a VA facility.

Initially, in adjudicating a claim for reimbursement of medical expenses, the Board must make a factual determination as to whether VA gave prior authorization for the non-VA medical care that the veteran received in a private facility in January 2002. See 38 U.S.C.A. � 1703(a); see also 38 C.F.R. � 17.54. This is a factual, not a medical, determination. Similes v. Brown, 5 Vet. App. 555 (1994).

In the instant case, it has not been contended that VA specifically agreed to pay the medical bills incurred at the private facility. Moreover, specific formalities which must be followed under 38 C.F.R. � 17.54 were not complied with here, as a result of which proper authorization from VA was not obtained. Accordingly, the Board must conclude in this case that prior authorization for the private medical treatment received February 4 through 6, 2002, was not obtained pursuant to 38 C.F.R. � 17.54, and that payment is not warranted for expenses incurred in conjunction with that treatment under 38 U.S.C.A. � 1703.

The medical file reflects that the veteran is not service connected for any disability. The Veterans Millennium Health Care and Benefits Act provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a

- 5

non- Department facility to those veterans who are active Department health-care participants (i.e., enrolled in the annual patient enrollment system and recipients of Department hospital, nursing horne, or domiciliary care under such system within the last 24-month period) and who are personally liable for such non- VA treatment and not eligible for reimbursement under the provisions of38 U.S.C.A. � 1728. See 38 U.S.C.A. � 1725 (West 2002); Pub. L. No. 106-117, 113 Stat. 1556 (1999). On July 12, 2000, VA published an interim final rule establishing regulations implementing 38 U.S.C.A. � 1725. 66 Fed. Reg. 36,467, 36,472. Those interim regulations are now final, and are codified at 38 C.F.R. � 17.1000-.1008 (2004).

However, under 38 D.S.C.A. � 1725, the term "emergency treatment" is defined as medical care or services furnished when VA or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the veteran can be transferred safely to a VA or other Federal facility. 38 U.S.C.A. � 1725(�)(1); 38 C.F.R. � 17.1002.

Having reviewed the complete record, the Board concludes that the care rendered to the veteran on February 4, 5 and 6, 2002, at Lexington Medical Center was not rendered for "emergency treatment" as defined by applicable law. That is, it was not furnished when VA or other Federal facilities were not feasibly available and an attempt to use them beforehand would not be reasonable, when such care or services are rendered in a medical emergency of such nature that a prudent lay person reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health, and only until such time as the veteran can be transferred safely to a VA or other Federal facility. 38 U.S.C.A. � 1725(�)(1); 38 C.F.R. � 17.1002. Though the period from January 27,2002, through February 3, 2002, was clearly for emergency treatment, the veteran could have been safely transferred to a VA medical center as of February 4,2002.

We have found the most probative evidence in this regard to be the discharge summary from Lexington Medical Center. That shows that the veteran was much

- 6

improved by day 8 of his hospitalization. The Board notes that there was a clear improvement, characterized as remarkable by health care providers, in the veteran's condition on day 8. This improvement is evident in the description of his behavior and his medical signs and symptoms, as well as in the fact that he was transferred on that day to the regular floor from the ICU. This improvement is uncontroverted in the medical evidence.

For the reasons and bases set forth above, the Board concludes that as of February 4,2002, the veteran could have been transferred safely to a VA facility. Thus, the veteran has failed to satisfy one of the 38 C.F.R. � 17.1002 criteria as to the time
period from February 4 to 6, 2002.

The Board has considered the veteran's written statements in which he stressed the condition was serious. He contends he was not fully recovered and that his memory was not back to normal until he returned home. The Board finds the complaints and descriptions of his medical history in the hospital report to be more probative as to the circumstances surrounding his improvement.

Therefore, the Board concludes that the preponderance of the evidence is against the claim, based on the finding that as of February 4,2002, the veteran was able to be safely transferred to a VA facility.

While the Board is sympathetic toward the veteran, it is are bound by the law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. �� 503, 7104; Harvey v. Brown, 6 Vet. App. 416,425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 43233 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).

In summary, the Board finds that the evidence fails to satisfy one of the criteria

- 7

listed in 38 C.F.R. � 17.1002. The benefit sought on appeal must, accordingly, be denied.

ORDER

Entitlement to payment or reimbursement of private medical expenses incurred from February 4, 2002, to February 6, 2002, is denied.

P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

- 8


judge_norm: MARY GALLAGHER

text: The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).

text:
Citation Nr: 0514000
Decision Date: 05/23/05    Archive Date: 06/01/05

DOCKET NO.  04-02 024	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to a compensable rating for bilateral hearing
loss.

ATTORNEY FOR THE BOARD

D. M. Casula, Counsel

INTRODUCTION

The veteran had active service from July 1980 to April 1981.

This matter comes before the Board of Veterans' Appeals
(Board) from a September 2002 RO rating decision which
granted service connection for bilateral hearing loss and
assigned a noncompensable (0 percent) rating, effective from
Febraury 12, 2002.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify you if
further action is required on your part.

REMAND

A review of the record shows that this matter is not ready
for appellate review.  In his initial claim for service
connection, submitted in February 2002, the veteran indicated
that he had been receiving treatment for his hearing loss at
the San Juan VA Medical Center (VAMC) since June 2000.  In a
July 2002 statement in support of claim, the veteran
indicated that there was "evidence located at VAMC San
Juan".  Although the VA examination reports have been
obtained from the San Juan VAMC, there is no indication that
the RO has attempted to obtain any relevant treatment records
for the veteran from the San Juan VAMC.  VA medical records
are considered part of the record on appeal since they are
within VA's constructive possession, and these records must
be obtained, pursuant to VA's duty to assist the veteran, and
then considered in deciding the veteran's claim.  See Bell v.
Derwinski, 2 Vet. App. 611, 613 (1992); see also 38 C.F.R. �
3.159(c)(2) (2004).

Accordingly, this appeal is REMANDED for the following:

1.  Obtain any relevant treatment records
for the veteran, from the San Juan VAMC,
that may pertain to his bilateral hearing
loss.  A negative reply should be
requested if there are no such treatment
records available.  Associate all records
and responses with the claims file.

2.  After the development requested above
has been completed to the extent
possible, review the record.  If any
benefit sought on appeal remains denied,
furnish a supplemental statement of the
case to the appellant and give him the
opportunity to respond thereto.

The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded.  Kutscherousky
v. West, 12 Vet. App. 369 (1999).  This claim must be
afforded expeditious treatment.  The law requires that all
claims that are remanded by the Board of Veterans' Appeals or
by the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner.  See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, � 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. �� 5109B, 7112).

_________________________________________________
	MARY GALLAGHER
	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) (2004).


judge_norm: WARREN W RICE, JR

text:
Citation Nr: 0515000
Decision Date: 06/02/05    Archive Date: 06/15/05

DOCKET NO.  94-32 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas

THE ISSUES

1.  Entitlement to service connection for post-traumatic
stress disorder (PTSD).

2.  Entitlement to service connection for a psychiatric
disorder other than PTSD, to include major depression,
generalized anxiety disorder, panic disorder, and alcohol and
drug abuse.

REPRESENTATION

Appellant represented by:	Kenneth M. Carpenter, Attorney

ATTORNEY FOR THE BOARD

A. C. Mackenzie, Counsel

INTRODUCTION

The veteran had verified military service from June 1967 to
March 1971.  His discharge for a second period of military
service, from May 1975 to February 1979, was determined to
have been under dishonorable conditions in an August 1979
administrative decision.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1993 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Wichita, Kansas.

In a January 1999 decision, the Board denied the veteran's
claim of entitlement to service connection for PTSD.
Subsequently, in a March 2000 joint motion, the veteran and
the Secretary of Veterans Affairs (Secretary) argued that the
January 1999 decision, to the extent it addressed the issue
of entitlement to service connection for PTSD, should be
vacated and that the case should be remanded to the Board for
further development.  The United States Court of Appeals for
Veterans Claims (Court) granted this joint motion for remand
in April 2000.

Also, in January 1999, the Board remanded the claim of
entitlement to service connection for alcohol and drug abuse,
generalized anxiety disorder, panic disorder, and major
depression back to the RO for further development, and this
issue has been recertified to the Board.  The Board again
remanded this case in September 2000, October 2003, and
August 2004.

The issue of entitlement to service connection for a
psychiatric disorder other than PTSD, to include major
depression, generalized anxiety disorder, panic disorder, and
alcohol and drug abuse, is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  All relevant evidence necessary to render a decision on
the veteran's claim has been obtained by the RO, and the RO
has notified him of the type of evidence needed to
substantiate his claim.

2.  The veteran did not participate in combat with the enemy
during service, and his PTSD has not otherwise been shown to
be attributable to a corroborated in-service stressor.

CONCLUSION OF LAW

PTSD was not incurred in or aggravated as a result of
service.  38 U.S.C.A. �� 1110, 1154, 5103, 5103A, 5107 (West
2002); 38 C.F.R. �� 3.159, 3.303, 3.304 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), (codified at 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107) became law.  Regulations implementing the VCAA
have since been published.  38 C.F.R. �� 3.102, 3.156(a),
3.159, 3.326(a).  The VCAA and implementing regulations apply
in the instant case, and the requirements therein appear to
have been met.

In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claim, and
no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claim.  See 38 U.S.C.A. � 5103A; 38
C.F.R. � 3.159.  Specifically, the RO has obtained records of
treatment reported by the veteran and has afforded him VA
examinations addressing his claimed disorder.  The RO has
also contacted the United States Armed Services Center for
Research of Unit Records (CURR) in an attempt to corroborate
his reported in-service PTSD stressors.

The Board is also satisfied that the RO met VA's duty to
notify the veteran of the evidence necessary to substantiate
his claim in an October 2004 letter.  By this  letter, the RO
also notified the veteran of exactly which portion of that
evidence was to be provided by him and which portion VA would
attempt to obtain on his behalf.  See Quartuccio v. Principi,
16 Vet. App. 183 (2002).  Additionally, the veteran was
advised to submit additional evidence to the RO, and the
Board finds that this instruction is consistent with the
requirement of 38 C.F.R. � 3.159(b)(1) that VA request that a
claimant provide any evidence in his or her possession that
pertains to a claim.

Here, the noted "duty to assist" letter was issued
subsequent to the appealed November 1993 rating decision.
However, as indicated above, the RO has taken all necessary
steps to both notify the veteran of the evidence needed to
substantiate his claim and assist him in developing relevant
evidence.  Accordingly, the Board finds that no prejudice to
the veteran will result from an adjudication of his claim in
this Board decision.  Rather, remanding this case back to the
RO for further VCAA development would result only in
additional delay with no benefit to the veteran.  See Bernard
v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on VA
with no benefit flowing to the veteran are to be avoided).

In order to establish service connection for a particular
disorder, the evidence of record must demonstrate that a
disease or injury resulting in a current disability was
incurred in or aggravated by active military service.  38
U.S.C.A. � 1110; 38 C.F.R. � 3.303.  With regard to PTSD, VA
regulations reflect that symptoms attributable to PTSD are
often not manifested in service.  Accordingly, service
connection for PTSD requires current medical evidence
establishing a clear diagnosis of the condition, presumed to
include the adequacy of the PTSD symptomatology and the
sufficiency of a claimed in-service stressor; credible
supporting evidence that the claimed in-service stressor
actually occurred; and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor.  38 C.F.R. � 3.304(f); Cohen v. Brown, 10
Vet. App. 128, 138 (1997).

The evidence necessary to establish the occurrence of a
stressor during service to support a claim for PTSD will vary
depending on whether the veteran was "engaged in combat with
the enemy."  See Zarycki v. Brown, 6 Vet. App. 91, 97-98
(1993).  If it is determined through military citations or
other supportive evidence that a veteran engaged in combat
with the enemy, and the claimed stressors are related to
combat, the veteran's lay testimony regarding the reported
stressors must be established as conclusive evidence as to
their actual occurrence, and no further development or
corroborative evidence will be necessary provided that the
veteran's testimony is found to be satisfactory.  Such
testimony must be credible and "consistent with the
circumstances, conditions, or hardships of such service."
38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(d), (f).  However,
if it is determined that the veteran did not engage in combat
with the enemy, or the claimed stressor is not related to
combat, the veteran's lay testimony alone is not sufficient
to establish the occurrence of the alleged stressor.  In such
cases, the record must contain some corroborative evidence
that substantiates or verifies the veteran's testimony or
statements as to the occurrence of the alleged stressor.
Such corroborating evidence cannot consist solely of after-
the-fact medical nexus evidence.  See Moreau v. Brown, 9 Vet.
App. 389, 396 (1996).

In a recent decision, the United States Court of Appeals for
Veterans Claims (Court) held that, in reporting stressors,
the veteran is not required to corroborate "every detail,"
such as his proximity to and participation in attacks.
Rather, the fact that he was stationed with a unit present
during such attacks "would strongly suggest" exposure.
Pentecost v. Principi, 16 Vet. App. 124, 128-29 (2002).

In this case, the veteran's service medical records are
negative for any psychiatric disorders, although two pre-
service nervous breakdowns are noted in his May 1967 Report
of Medical History.  However, numerous VA and private medical
records reflect a current diagnosis of PTSD.  The first
evidence of this disorder is a report of VA hospitalization
from October to December of 1991, which contains a diagnosis
of "[p]robable post-traumatic stress disorder."  A VA
psychiatric hospitalization report, covering a period from
January to July of 1992, contains an Axis I diagnosis of
chronic and severe PTSD.  The report of a May 1993 VA
psychiatric examination contains diagnoses of chronic and
severe PTSD, with depression; panic disorder without
agoraphobia; and alcohol abuse in partial remission.  The
examiner who conducted this examination noted the veteran's
reported history of traumatic events in Vietnam and indicated
that "[t]he veteran has experienced an event that is outside
the range of usual human experience and that would be
markedly distressing to almost anyone."  Similarly, the
examiner who conducted the veteran's May 1994 VA psychiatric
examination diagnosed moderate PTSD and a history of alcohol
abuse and commented that the veteran "experienced traumatic
incidents" in Vietnam.

As noted above, however, the veteran's diagnosis of PTSD must
be based on a corroborated in-service stressor for service
connection to be warranted.  While the veteran's examiners
have related his PTSD to service, such medical nexus evidence
is insufficient, in and of itself, to predicate the grant of
service connection for PTSD.  See Moreau v. Brown, 9 Vet.
App. at 396.  Thus, the question becomes whether the veteran
either engaged in combat with the enemy during his service in
Vietnam or experienced a verifiable in-service stressor.

With regard to the question of whether the veteran served in
combat with the enemy, the Board has considered the veteran's
military commendations, as listed in his DD Form 214N, and
observes that he received the National Defense Service Medal,
the Vietnam Service Medal, the Vietnam Campaign Medal, and
the Armed Forces Expeditionary Medal.  There is no indication
that he received any combat-related citations, such as the
Purple Heart or the Combat Infantryman Badge.  The Board also
observes that the veteran's service medical records do not
reflect any combat-related injuries, such as a shrapnel
wound.

As such, the Board has considered the veteran's reported in-
service stressors.  In a November 1994 statement, the veteran
indicated that he witnessed and participated in unspecified
civilian atrocities in Vietnam.  He noted that he was
subjected to rocket and mortar attacks while assigned to the
U.S.S. Tappahannock, and he indicated that such incidents
took place during the summer of 1969.  He also described
sniper attacks.  Additionally, he indicated that three of his
friends were killed and/or wounded in Vietnam.  The Board
also observes that, in a March 1997 statement, the veteran
reported an incident in which patrol boats opened fire on
Vietnamese fishing boats.

In view of the veteran's reported stressors, the RO contacted
CURR in order to verify such reported stressors.  Materials
received from CURR include logs from the U.S.S. Tappahannock
and confirmation that the veteran's three friends were, in
fact, killed in action in Vietnam.  However, the logs from
the U.S.S. Tappahannock do not confirm either the rocket and
mortar attacks, although such attacks were quite common, or
the attack on Vietnamese fishing boats reported by the
veteran.  Moreover, there is no indication from the record
that the veteran witnessed the deaths of his three friends;
in fact, in a March 1997 statement, the veteran noted that he
did not find out about these deaths until he read about them
in a newspaper.

Pursuant to the March 2000 joint motion for remand, VA has
pursued the questions of whether the veteran's PTSD could
have been related to confirmed deaths of his three friends in
Vietnam and whether learning of these deaths constituted a
sufficient "stressor."  See 38 C.F.R. � 4.130.  The Board
observes that this question constituted the chief basis for
the March 2000 joint motion.

Accordingly, the veteran underwent a further VA examination
in January 2000, with an examiner who reviewed his claims
file.  This examiner rendered Axis I diagnoses of recurrent
depression episodes, a history of alcoholism, and a history
of marijuana use; and Axis II diagnoses of a personality
disorder and PTSD.  The examiner noted that the the veteran
"had been repeatedly exposed to proximity of the war zones
and had been in various stressors."  These incidents,
including seeing dead soldiers and moving body bags, had
resulted in flashbacks and other triggers of memories of
Vietnam, which were "all depressing to the veteran."  As
such, the examiner found that "[h]is recurrent depressive
episode has in part some consultation to his past military
experiences."  However, in a March 2001 addendum, the
examiner asserted that the "stressor" in the present case
consisted of the incidents involving the killing of
Vietnamese nationals and the exposure to enemy fire in Cam
Rahn Bay.  The traumatic event was noted to be "not related
to 'reading about the death of 3 acquaintances.'"

Similarly, in a February 2004 VA PTSD examination report, the
examiner noted that the veteran found the three noted deaths
to be stressful, but "it is hard to picture this as being
one of the types of stressors described in the DSM-IV."  The
examiner indicated that it was "hard to fathom that merely
reading about some of the deaths, however tragic that it
might be, would be a stressor at such a level that would lead
to [PTSD]."  The Board observes that this examiner reviewed
the veteran's claims file in conjunction with the
examination.

In this case, the Board acknowledges that multiple post-
service medical records reflect a diagnosis of PTSD.
Nevertheless, the veteran has not been shown to have engaged
in combat with the enemy during his service in Vietnam, and
the record is devoid of a clear diagnosis of PTSD based upon
a verifiable stressor.  Specifically, the veteran's claimed
stressors of mortar and sniper attacks and witnessing attacks
on Vietnamese nationals have not been corroborated through
materials supplied by CURR.  While the deaths of the
veteran's three friends in Vietnam have been confirmed,
multiple VA examiners addressed the medical question of
whether learning of such deaths constituted a stressor in the
present case and found that these deaths did not represent
the stressor upon which the current PTSD diagnosis was
predicated.

Under 38 C.F.R. � 3.304(f), service connection for PTSD is
warranted only in cases of a diagnosis of PTSD based upon a
verifiable in-service stressor.  As such, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for PTSD, and this
claim must be denied.  In reaching this determination, the
Board acknowledges that VA is statutorily required to resolve
the benefit of the doubt in favor of the veteran when there
is an approximate balance of positive and negative evidence
regarding the merits of an outstanding issue.  That doctrine,
however, is not applicable in this case because the
preponderance of the evidence is against the veteran's claim.
See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38
U.S.C.A. � 5107(b).

ORDER

The claim of entitlement to service connection for PTSD is
denied.

REMAND

The Board, in considering the veteran's claim for service
connection for a psychiatric disorder other than PTSD, is
aware that this matter has been pending for more than a
decade and has previously been the subject of multiple prior
remands.  However, the Court has determined that a remand by
the Board confers upon a claimant, as a matter of law, the
right to compliance with remand orders.  See generally
Stegall v. West, 11 Vet. App. 268, 270-71 (1998).

In its most recent remand, in August 2004, the Board
requested that the veteran be afforded a VA examination to
determine the nature and etiology of all current psychiatric
disorders other than PTSD.  The examiner was specifically
directed to render an opinion as to whether it was "at least
as likely as not" (e.g., a 50 percent or greater
probability) that any such disorders were etiologically
related to the period of honorable service from June 1967 to
March 1971.  The Board's basis for seeking such information
was the combination of prior diagnoses of non-PTSD
psychiatric disorders, including major depression, panic
disorder without agoraphobia, generalized anxiety disorder,
and dissociative disorder; and repeated references to
stressful in-service incidents in the veteran's prior VA
psychiatric examination reports.

The veteran was subsequently afforded a VA psychiatric
examination in October 2004.  In multiple respects, however,
this examination report is inadequate.  First, while the
examiner rendered a diagnosis of PTSD, he did not clearly
indicate whether other current diagnoses were present.  The
examiner noted a history of pre-service depression but did
not clarify whether this disorder was still present, and he
did not comment in any manner on the prior diagnoses of
psychiatric disorders and whether they were still applicable.
The examiner merely noted that there was no evidence that the
veteran's PTSD was "more likely than not related to the
experiences" in service.  Moreover, and confusingly, the
examiner indicated that the veteran "was predisposed to
react strongly to any problem that most people would consider
merely being part of the military."  The examiner also noted
that the veteran's "current problems" were not shown to be
"50 percent or greater probability more likely to be related
to military experiences than they are to his traumatic
childhood experiences," and he further stated that there was
"no evidence that his problems did not stem from his
difficulties which pre-existed his military service."

Again, the Board regrets a further remand in this case.
However, the evidence presently of record is demonstrably
insufficient to provide the Board a basis for reaching a
decision in this case.  Accordingly, this matter must be
REMANDED to the RO for the following action:

1.  The veteran should be afforded a VA
psychiatric examination to determine the
nature and etiology of his current
psychiatric disorders other than PTSD.
If possible, this examination should be
conducted by a VA psychiatrist who has
not examined the veteran since the
Board's September 2000 remand.  The
examiner is requested to review the
entire claims file in conjunction with
the examination.  Moreover, this examiner
is reminded that, while the veteran's
diagnosis of PTSD is well-documented in
the record, it his other claimed
psychiatric disorders, and not PTSD
itself, that are of primary interest to
the Board in the matter at hand.

Based on the examination results and the
claims file review, the examiner should
clearly indicate whether the veteran
currently suffers from any chronic
psychiatric disorders other than PTSD.
If so, the examiner must provide an
opinion as to whether it is at least as
likely as not (e.g., a 50 percent or
greater probability) that the veteran's
current psychiatric disorder(s) is/are
etiologically related to his period of
honorable service from June 1967 to March
1971.  If no psychiatric disorders are
found, the examiner should explain this
finding in view of the previous diagnoses
of major depression, panic disorder
without agoraphobia, generalized anxiety
disorder, and dissociative disorder,
noted above.

All opinions and conclusions expressed by
the examiner must be supported by a
complete rationale in a typewritten
report.

2.  Then, the veteran's claim of
entitlement to service connection for a
psychiatric disorder other than PTSD, to
include major depression, generalized
anxiety disorder, panic disorder, and
alcohol and drug abuse, should be
readjudicated.  If the determination of
this claim remains unfavorable to the
veteran, he and his representative should
be furnished with a Supplemental
Statement of the Case and afforded a
reasonable period of time in which to
respond before the case is returned to
the Board.

The veteran has the right to submit additional evidence and
argument on this matter.  See generally 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 The Veterans Benefits Act of

2003, Pub. L. No. 108-183, � 707(a), (b), 117 Stat. 2651
(2003) (to be codified at 38 U.S.C. �� 5109B, 7112).

____________________________________________
	WARREN W. RICE, JR.
	Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs