judge_norm: L HOWELL

disposition: dismissed

condition: back

condition: hypertension

text:
Citation Nr: 1239000
Decision Date: 11/15/12    Archive Date: 11/20/12

DOCKET NO.  06-29 059	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to a rating in excess of 40 percent for muscular strain, low back, superimposed on spondylolisthesis, L4-S1, with anterior osteophytes and decreased disc height.

2.  Entitlement to service connection for hypertension.

3.  Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for sinusitis.

4.  Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for migraine headaches.

REPRESENTATION

Veteran represented by:	Oregon Department of Veterans' Affairs

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel

INTRODUCTION

The Veteran had active duty service from June 1982 to September 1992.

This matter is on appeal from the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO).

In September 2009, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ) who has subsequently been designated to serve as Acting Chairman of the Board.  As such, he is no longer available to consider the appeal.

In August, the Board sent the Veteran a letter advising him that the law requires that the VLJ who conducts a hearing on appeal must participate in any decision made regarding such appeal.  He indicated that he did not wish to have another hearing at his local RO.

The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.

The issues of service connection for headaches and sinusitis 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.

FINDINGS OF FACT

1.  At the hearing before the Board in September 2009, the Veteran withdrew his appeal for an increased rating for a low back disability.

2.  Blood pressure readings consistent with hypertension were noted in service; a current diagnosis of hypertension has been related to active duty service.

3.  In January 2003, the RO denied the claims of entitlement to service connection for sinusitis and for headaches; the Veteran he did not initiate an appeal or submit new and material evidence within the one year appeal period.

4.  Evidence obtained since the January 2003 rating decision is new and material with regard to both claims.

CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the appellant on the issue of a rating in excess of 40 percent for a low back disability have been met.  38 U.S.C.A. �� 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. � 20.204 (2012).

2.  Hypertension was incurred in service.  38 U.S.C.A. �� 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. � 3.303 (2012).

3.  The January 2003 rating decision, which denied entitlement to service connection for sinusitis is final; new and material evidence has been submitted, and the Veteran's claim is reopened.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. �� 3.104(a), 3.156, 20.302 (2012).

4.  The January 2003 rating decision, which denied entitlement to service connection for headaches is final; new and material evidence has been submitted, and the Veteran's claim is reopened.  38 U.S.C.A. �� 5108, 7105 (West 2002); 38 C.F.R. �� 3.104(a), 3.156, 20.302 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has reviewed all of the evidence in the Veteran's claims folder.   Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

Increased Rating for a Low Back Disability

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. � 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. � 20.204 (2011).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. � 20.204.

In the present case, the Veteran withdrew his appeal as to this issue at his Board hearing.  As such, there remain no allegations  of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

Service Connection for Hypertension

Under the relevant laws and regulations, 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. �� 1110, 1131 (West 2002).  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. � 3.303(b) (2012).  However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. � 3.303(b) (2012).

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disorder and the post-service symptomatology.  Clyburn v. West, 12 Vet. App. 296, 302 (1999).

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. � 3.159(a)(1).  "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. � 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).

Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. � 1113(b) (West 2002); 38 C.F.R. � 3.303(d) (2011).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service treatment records reflect that on enlistment examination in April 1982, the Veteran's blood pressure was 146/80.  During service, his blood pressure was recorded a number of times, including in January 1989 (124/90), March 1989 (122/98), June 1989 (122/102), July 1989 (124/90), September 1989 (108/90), January 1990 (120/92), January 1990 (135/108), January 1990 (140/90), May 1990 (130/100), October 1990 (136/90), August 1991 (106/92), October 1991 (120/92) and May 1992 (118/92).  Other, lower readings were also recorded at various times.

At the Veteran's separation physical in September 1992, his blood pressure was 122/80; however, the examiner noted that his five day blood pressure average was normal.  He reported high blood pressure on his September 1992 separation Report of Medical History and noted his blood pressure had been high in Germany for two weeks and high off and on.  The examiner made a notation that there was "[n]o problem at present."

Post service evidence reflects that a March 1993 periodic examination for Reserve service purposes disclosed a blood pressure of 122/98, with a diagnosis noting diastolic hypertension.  A November 1994 private treatment record notes the Veteran had hypertension, while a December 1994 private treatment record notes he was taking medication on a daily basis and that his blood pressure was 128/86.  A November 1997 Reserve examination report shows a blood pressure reading of 138/98.  A November 2003 Reserve examination shows a blood pressure reading of 150/120.  Private treatment records since 1994 and more recent VA treatment records show a continued diagnosis and treatment of hypertension to the present.

The Veteran contends that his hypertension began during his active service, as evidenced by the numerous high blood pressure readings.  He testified that about fourteen months passed between his separation from service and his first post-service treatment for elevated blood pressure and noted that he initially sought treatment after becoming dizzy at work, and because he had gotten a job with health insurance.  He indicated that he has been on medication for hypertension since first being diagnosed after that incident.

In April 2012, a VA examiner opined that it was at least as likely as not (50 percent or greater) that the Veteran's hypertension began during his time on active duty service.  The examiner explained that per the national commission criteria, a diagnosis of hypertension required the average of two or more properly measured readings at each of two or more visits after an initial screen.  The examiner noted that the Veteran had three consecutive diastolic blood pressure readings in January 1990 of 92, 108, and 90, all of which were in the hypertensive range.  As such, the examiner concluded that the Veteran developed hypertension during his active duty military service.

The Board has considered all the evidence of record and finds that service connection is warranted for hypertension.  The medical evidence supports the claim and the Veteran's lay testimony is found to be credible.  Therefore, the appeal is granted.

New and Material Evidence

Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C.A � 5108 (West 2002); 38 C.F.R. � 3.156 (2012).  "New" evidence means evidence "not previously submitted to agency decisionmakers."  38 C.F.R. � 3.156(a) (2012).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  Id.

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).

Historically, the Veteran's claims of entitlement to service connection for sinusitis and headaches were denied in a January 2003 rating decision.  He neither filed a notice of disagreement with this rating decision nor submitted any additional evidence within a year, and the January 2003 rating decision therefore became final.

At the time of the January 2003 rating decision, the evidence of record included service treatment records, which did not show that the Veteran was experiencing any sinusitis/sinus symptomatology (other than periodic colds) or headaches.  In fact, he specifically denied having/experiencing either sinusitis or headaches on medical history surveys completed in August 1991 and again in September 1992 in conjunction with his separation physical.  The separation physical also failed to diagnose any chronic sinusitis or headache disorder.  He did report sinusitis at a periodic physical in November 1997, but his sinuses were found to be normal on examination at that time.

The Veteran also submitted private treatment records from as early as 1994 which showed sinus complaints as early as 1997, and headache complaints as early as 1999.  At an October 2002 VA examination, he reported chronic sinus infections, which were treated with 2-3 courses of antibiotics per year.  Following a physical examination, the diagnosis was probable chronic sinusitis, pending x-rays.

X-rays were taken and showed relatively small sinuses which were clear, and the examiner opined that the Veteran was most likely having recurrent episodes of acute sinusitis that may or may not be adequately treated with his course of antibiotics.  The examiner also added that the Veteran's headaches could well be attributed to his sinusitis condition, as sinusitis could cause chronic headaches.

Since January 2003, the Veteran has submitted additional evidence.  Specifically, he provided a FAQ sheet regarding Gulf War fires and chemical weapon exposures, as well as a government letter stating that his unit may have been exposed to chemical weapons while stationed in the Persian Gulf region.  He asserted in September 2004 that his sinus problems and headaches began right after he returned from Iraq and had continued to the present day.

In support of his claim, the Veteran has provided additional evidence in the form of statements and testimony, which addressed the onset of his sinusitis and headaches.  He testified at a hearing before the Board, asserting that he first got treatment for his sinus conditions several months after getting blood pressure treatment, approximately 18 months after service.  He also testified that he had never experienced a headache prior to his service in the Persian Gulf, but he indicated that he now experienced them every 2-4 weeks.

The Veteran also submitted a series of letters from friends and family.  His former wife wrote that they were married from 1984-1997 and that he was always in good health until after Desert Storm in 1991, when she noticed that he began to come down with upper respiratory infections more frequently, and that now he was repeatedly sick.  A friend of 15 years stated (in 2006) that the Veteran had experienced many "cold like" symptoms and breathing problems.  She recalled that he had previously been a very healthy man.

The Veteran's sister-in-law wrote that when she met him in 1988, he was energetic, healthy and mobile; however, she observed that after he returned from Desert Storm, he went from energetic to lethargic, and he experienced chronic sinus infections.  Several additional letters were submitted from people who had met the Veteran around 2000 and described his current health problems.

This lay evidence is relevant in that for the limited purpose of determining whether to reopen a claim, testimony is presumed to be credible.  Therefore, the Board concludes that the lay evidence is new in that it was not of record when the Veteran's claim was previously denied and it is material in that the evidence addresses part of the reason that the claim was denied, namely continuity of symptomatology from his time on active duty.  Accordingly, the Veteran's claims are reopened and the appeals are granted to this extent.

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2012).

In this case, the Board is granting in full the benefit sought on appeal with respect to the claim for service connection for hypertension, as well as reopening the claims.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.

ORDER

The appeal with respect to a rating in excess of 40 percent for muscular strain, low back, superimposed on spondylolisthesis, L4-S1, with anterior osteophytes and decreased disc height is dismissed.

Service connection for hypertension is granted.

New and material evidence having been presented, the claim for entitlement to service connection for sinusitis is reopened.

New and material evidence having been presented, the claim for entitlement to service connection for headaches is reopened.

REMAND

Having reopened the claims for sinusitis and headaches, the Board finds that a remand is needed to fully develop the claims.

In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Veterans Claims Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

Here, it is unclear whether the Veteran has a chronic headache disorder or chronic sinusitis; and, if so, whether either disorder began during or was otherwise caused by active duty service.  Therefore, the Board finds that a medical opinion is needed.

Accordingly, the case is REMANDED for the following actions:

1.   Obtain VA clinical records from the Portland VA Medical Center since April 2008.

Any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.

2.  Schedule the Veteran for an examination.  The claims file should be provided, and a complete rationale should be provided for any opinion expressed.

The examiner should diagnose any current sinus and/or headache disorder, and then should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that a current sinus and/or headache disorder either began during or was otherwise caused by the Veteran's active duty.

In doing so, the examiner should specifically address the service treatment records, the Veteran's assertions that he began experiencing headaches and sinusitis upon his return from service in the Persian Gulf region, and the suggestion that his headaches might be secondary to a sinus condition.

If the examiner concludes that the Veteran does not have a diagnosable headache or sinus disorder, the examiner should indicate whether it is at least as likely as not that the symptoms the Veteran has reported experiencing, such as sinus complaints and headaches, are manifestations of an undiagnosed illness or chronic multisymptom illness.

3.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response.

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).

______________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: DEREK R BROWN

disposition: denied

text:
Citation Nr: 1240000
Decision Date: 11/21/12    Archive Date: 11/27/12

DOCKET NO.  10-47 203A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Manila, the Republic of the Philippines

THE ISSUE

Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund.

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

G. Jackson, Counsel

INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 decision issued by the RO.  The denial was based on lack of qualifying service to render the appellant eligible for this benefit.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

The appellant is not shown to have had active military, naval, or air service, and was not an individual or a member of a group considered to have performed active military, naval, or air service.

CONCLUSION OF LAW

The appellant does not have status as a veteran for purposes of his claim for a one time payment from the Filipino Veterans Equity Compensation Fund, and therefore he does not meet the requirements of basic eligibility for these VA benefits.  38 U.S.C.A. �� 101, 107 (West 2002); 38 C.F.R. ��  3.1, 3.40, 3.41, 3.203 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

In Palor v. Nicholson, 21 Vet. App. 325 (2007), the United States Court of Appeals for Veterans Claims (Court) held that, in claims where it is necessary to first establish veteran status, proper VA notice must be tailored to also inform claimants of the information or evidence necessary to prove the element of veteran status, what information the claimant/appellant is responsible for providing, and what information VA will seek to obtain concerning that element.

A review of the claims file shows the appellant was not advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication in April 2010.  He was provided with notice of what evidence was needed to show entitlement to Filipino Veterans Equity Compensation benefits by means of the November 2010 statement of the case.  The statement of the case addressed the types of evidence VA was responsible for getting, as well as the types of evidence the appellant was responsible for.  The case was thereafter readjudicated by means of a Supplemental Statement of the Case issued in August 2012.

The appellant has not been prejudiced by any notice defects.  The appellant has not alleged that he was prejudiced because he did not receive notice of what was needed to substantiate his claim prior to April 2010, and the Board's review of the record does not disclose prejudicial error in the development of this case.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The record reflects that based on information and evidence submitted by the appellant in March 2009, the RO sought service department verification of his claimed service through the National Personnel Records Center.  That Center determined that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  Based on that service department certification that he did not have qualifying service, the RO determined that he is ineligible for VA benefits as a matter of law.  When an appellant is ineligible for VA benefits as a matter of law based on the service department's refusal to certify the alleged service, he is not prejudiced by VA's failure to notify him of the various methods available for proving Philippine veteran status. See Palor, 21 Vet. App. at 332-33 (noting that "given the binding nature of the U.S. service department's certification . . . a remand for further development could not possibly change the outcome of the decision.")

The RO sought certification of the appellant's military service in November 2009, March 2010, July 2010, and September 2011.  There is no indication that information submitted by VA to the service department for the purposes of certifying his service was erroneous or incomplete.  The appellant has submitted multiple documents, to include copies of his Affidavit for Philippine Army personnel, his honorable discharge certificate from the Commonwealth of the Philippines, Philippine Army; and a September 2008 certification from the Armed Forces of the Philippines.  None of this evidence, however, suggests that further development is in order through the National Personnel Records Center.  This is so because his contentions with respect to the units in which he served remain unchanged since he first reported his unit information.  Furthermore, the RO has supplied the service department with a copy of all pertinent documents.  Therefore, VA's duty to assist has been met. Accordingly, the Board will address the merits of the claim.

Laws and Regulations

In order to be eligible for benefits administered by the VA, the evidence must establish that the individual seeking benefits is a veteran.  The term "veteran" is defined in 38 U.S.C.A. � 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.

The provisions of 38 U.S.C.A. � 107(a) state that service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code.  Under 38 C.F.R. � 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes.  These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945).

Under 38 C.F.R. � 3.203(a), the VA may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department, if the evidence meets the following conditions: (1) The evidence is a document issued by the service department.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate.

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. � 3.203(a), VA is required to request verification of service from the service department.  See 38 C.F.R. � 3.203(c).

Under 38 C.F.R. ��  3.40 and 3.41, certification of service is a prerogative of the service departments, and the VA has no authority to amend or change their decision.  The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA.  See Spence v. West, 13Vet.App. 376 (2000) (2000); Venturella v. Gober, 11 Vet.App. 340,341 (1997); Cahall v. Brown, 7 Vet.App. 232, 237 (1994); Duro v. Derwinski, 2 Vet.App. 530, 532 (1992).

Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund."  American Recovery and Reinvestment Act � 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service ...."  However, nothing in this act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act."

Section 1002 (d) of the American Recovery and Reinvestment Act provides that an eligible person is any person who--(1) served--(A) before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.  Section 1002(j)(2) of the law also provides that VA will administer its provisions in a manner consistent with VA law including the definitions in 38 U.S.C.A. � 101 except to the extent otherwise provided in the statute.

The above summaries of the law and regulations as to what service constitutes active service for purposes of establishing veteran status reflect that, in order to qualify for compensation under the Filipino Veterans Equity Compensation Fund, a claimant must meet requirements that are included in the requirements under the law and regulations in effect prior to passage of this law.  Thus, in order to show entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund, a claimant must satisfy the criteria required for establishing basic eligibility for legal entitlement to VA benefits.

Analysis

In 2009, the appellant filed his claim for entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund.  Along with his application for the one-time payment, the appellant submitted a Commonwealth of the Philippines Philippine Army Certificate of Honorable Military Discharge, which indicated that he served as a staff sergeant in A Company of Folsom's Fil-American unit from November 1942 to February 1946.  The RO sent a request to the National Personnel Records Center containing the information provided by the appellant regarding his claimed service.  The National Personnel Records Center sent a response received in April 2010, in which it indicated in a stamped notation that the appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.

In a claim for non-service connected pension and in disagreeing with the RO's decision to deny the claim for entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund, the appellant provided similar and supporting documentation regarding his service.  Despite being under no obligation to do so, the RO resent requests to the National Personnel Records Center containing the information provided by the appellant regarding his claimed service.  See Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008).  The National Personnel Records Center again responded that the appellant has no service as a member of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces.

While "Philippine claimants are not limited solely to (National Personnel Records Center's) verification as a means of proving veteran status, as they may also submit official evidence from the individual United States Service Department that verifies their service," Palor, 21 Vet.App. at 330, the appellant has not done so here.  As the National Personnel Records Center's determination as to the appellant's service is binding on VA, the appellant is not a "veteran" for purposes of entitlement to VA benefits.  Id. at 332.  Veteran status is a prerequisite to entitlement to both nonservice-connected pension and payment from the Filipino Veterans Equity Compensation Fund.  Therefore, the appellant's claim for entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994).

ORDER

Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund is denied.

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHAEL J SKALTSOUNIS

disposition: remanded

text:
Citation Nr: 1302000
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  02-15 167A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for a right hip disability.

3.  Entitlement to service connection for a shortened right leg.

REPRESENTATION

Appellant represented by:	Peter J. Sebekos, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel

INTRODUCTION

The Veteran had active service from June 1948 to May 1952.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of May 2002.  In a decision dated in January 2005, the Board denied the Veteran's appeal.  The Veteran then appealed his claims to the U.S. Court of Appeals for Veterans Claims (Court).  In a Joint Motion to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated and remanded; a March 2006 Court order granted the joint motion.  After remanding the appeal in April 2007, the Board again denied the claims in March 2009.  The Veteran again appealed to the Court, which again, pursuant to a Joint Motion for Remand (JMR) filed by the parties, vacated and remanded the Board decision in February 2010.

In January 2012, the appellant appeared at a videoconference hearing held before the undersigned.  Thereafter, the Board issued a decision in April 2012 which reopened the Veteran's claim to entitlement to service connection for a low back disability and remanded that issue, along with the other two issues currently in appellate status, for further development.  As addressed in further detail below, since it does not appear that such development has been completed, the Board must again remand these issues to the RO.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the appellant if further action is required.

REMAND

The Veteran contends that in late 1948, he injured his back while trying to load a piece of artillery.  As noted in the prior remand, service treatment records show that the Veteran was seen in September 1948 for the complaint of lumbar back pain.  The Veteran also states that in December 1950, he and another soldier became entangled during the course of a parachute jump, causing an abnormal landing.  He states that the other soldier sustained severe injuries, including a broken back, and was hospitalized.  The Veteran sustained less severe injuries, but nevertheless, the next day, experienced severe bruising on his right side, and had right leg and hip pain.  He states that he was treated several times on an outpatient basis.

Medical evidence of record includes July 2003 X-rays which demonstrate degenerative spurring in the hip joints.  While the Veteran was afforded a VA examination in July 2003, the examiner failed to provide a detailed rationale when he authored a negative opinion as to the Veteran's low back and right hip conditions, and the claimed in-service parachute injury was not discussed.   To that end, the Veteran submitted a study of typical parachute injuries occurring in the course of 250,000 military parachute school jumps.  According to this report, a parachutist had a one percent chance of injury in any one parachute descent.  Typical injuries included, as potentially pertinent to this appeal, strain of the right rectus muscle and contusions and separation of the acromioclavicular joint.  A "silent fracture" (meaning that it was relatively asymptomatic) of the upper third of the fibula was also noted as a typical injury, although no mention of any associated leg length shortening was reported.

The Board found in April 2012 that the Veteran had to be afforded a VA examination, with nexus opinions, to include a claims file review by the examiner, and which addressed the above concerns.  See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 2002); 38 U.S.C.A. � 5103A(d); 38 C.F.R. � 3.159(c)(4).  However, following a review of the Veteran's claims file, and the Virtual VA system, it does not appear that this development has been completed.

As such, the issues on appeal must be remanded once again so as to provide a VA examination to address these issues.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions); 38 C.F.R. � 19.9 (2012) (if any action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to ascertain any current diagnoses with regard to the low back, right hip, and a shortened right leg, and determine whether it is at least as likely as not that any such disability was of service onset, or is otherwise related to service.

Specifically, the examiner must give due regard to the medical evidence of record, including the private medical opinions dated in September and October, 2001, and the Veteran's contentions concerning a back injury in 1948 and a parachute injury in 1950.  The information contained in a parachute school survey should also be taken into consideration, in addition to all other relevant evidence of record.

Finally, the examination should also address whether it is at least as likely as not that any diagnosed low back or right hip condition(s) is/are proximately due to, or were aggravated (permanently worsened) by the Veteran's shortened right leg. (No opinion as to the outcome of the claim for service connection for a shortened right leg is to be implied by this request; the opinion is requested solely to avoid another remand for such examination, should service connection be granted.)

The entire claims folder must be made available to the examiner in conjunction with the examination, and the complete rationale for all opinions reached must be included in the final examination report.

NOTE: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

2.  After assuring compliance with the above development, and any other notice and development action required by law, the RO should review the claims on appeal.  All claims must be reviewed on a de novo basis.  If the claim for service connection for shortened right leg is granted, the issue of secondary service connection (including by aggravation) for the right hip and low back conditions should be fully developed and addressed before the appeal is returned to the Board.  If any claim remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned 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. 2012).

_________________________________________________
Michael J. Skaltsounis
Acting 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) (2012).


judge_norm: DAVID L WIGHT

text:
Citation Nr: 1303000
Decision Date: 01/28/13    Archive Date: 02/05/13

DOCKET NO.  09-37 892	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.

ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The Veteran served on active duty from December 2003 to March 2005.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The record shows that the Veteran failed to report for a scheduled hearing before a member of the Board without good cause.  Therefore, the hearing request is deemed to have been withdrawn.  38 C.F.R. � 20.704 (2012).

In March 2012, the Board remanded the claim for additional development.  The case has been returned to the Board for consideration.

Lastly, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.

FINDING OF FACT

The Veteran's PTSD more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than reduced reliability and productivity.

CONCLUSION OF LAW

The criteria for rating in excess of 30 percent for PTSD are not met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 4.7, 4.130, Diagnostic Code 9411 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. �� 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. � 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. � 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant.  Pelegrini at 121.  Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006).

Here, the Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection for PTSD.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Thus any defect in the notice provided to the Veteran is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Nevertheless, by letters dated in September 2008 (prior to the grant of service connection), the RO notified the Veteran of the evidence necessary to substantiate his claim for PTSD; the information that he needed to provide; and the information or evidence that VA would attempt to obtain.  Also, the RO provided the Veteran with notice of how VA assigns disability ratings and effective dates.

VA further has a duty to assist.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. � 5103A(a); 38 C.F.R. � 3.159(c), (d).  Here, VA obtained all relevant records and associated these with the claims file, to include a copy of the Veteran's vocational rehabilitation folder.  VA provided the Veteran with an appropriate VA examination.

The case was previously remanded in March 2012 for development to include a VA examination.  A VA examination was conducted in April 2012.  The Board finds that the VA examination report described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).  Therefore, the Board concludes that there was substantial compliance with the directives contained in the Board's prior remand decision.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Evaluation of PTSD

The Veteran seeks an initial evaluation in excess of 30 percent for PTSD.  He argued in his substantive appeal that a higher rating was warranted for PTSD because he "recently lost employment, in part, due to this condition."

General Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. � 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. � 4.14.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history.  38 C.F.R. � 4.1.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that 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").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

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 v. Derwinski, 1 Vet. App. 49, 53 (1990).

Evaluation of PTSD

PTSD is rated under 38 C.F.R. � 4.130, Diagnostic Code 9411.  The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. � 4.130, Diagnostic Code 9411.

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships.  Id.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. � 4.126.

The use of the term "such as" in 38 C.F.R. � 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the, "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  Richard v. Brown, 9 Vet.App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).  A score of 51-60 is assigned where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflict with peers or co-workers).  GAF scores between 61 and 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  Id.

Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 30 percent for PTSD.  Neither the lay nor the medical evidence of record more nearly approximates the criteria for a 50 percent or higher disability evaluation.  38 C.F.R. �� 4.7, 4.130, Diagnostic Code 9411.

Report of VA examination dated in October 2008 reflects that the Veteran was married and employed.  His symptoms included short temper, impatience, intrusive memories, avoidance of large crowds, sense of detachment and distance, increased arousal with difficulty falling asleep, and nightmares.  The Veteran reported that his nightmares may not occur for 2 to 3 weeks, but then he will have them every night for a week.  The Veteran reported that he often goes fishing or hunting with his brother to "get away from news and people asking questions."  He reported edginess, anxiousness, and being more vigilant.  He reported getting 4 to 6 hours of sleep a night.  He reported yelling at coworkers if he thinks they are moving too slowly or not doing things correctly.  He reported yelling at his wife about a meal.  The Veteran indicated that he had been married twice, and lived with his current wife.  He has a son from his first marriage and visitation rights (2 nights a week and every other weekend).  His social network consisted of his wife, parents, brothers, and a few friends from work.  He reported fishing and bow hunting with his brother.  He reported that he occasionally, 2 to 3 days a month, did not want to socialize.  The Veteran indicated that he worked for a local contractor in construction-mostly demolition and concrete.  He reported missing 2 to 3 days a month earlier in 2008 because he could not get out of bed and had trouble focusing when at work.

Mental status evaluation showed that he presented early, appropriately dressed and groomed.  He was fully oriented.  Speech was within normal limits.  There was no impairment of thought process, immediate memory, and concentration.  Affect was confined to expressions of worry and sadness, with a few brief moments of tearfulness.  Affect appeared to be mood congruent.  There was no sign of psychosis.  The Veteran denied suicidal and homicidal ideation.  His daily activities involved working Monday through Friday, spending week nights home with his wife, and caring for his son Tuesday and Thursday evenings.

The examiner assigned a GAF of 60, noting moderate symptoms of daily intrusive thoughts, sleep disturbance, mood and behavior disturbance in the form of agitation and irritability, and affective detachment.  The Veteran reported impaired performance on the job and lack of focus and motivation to do household work, relying on his wife to care for him.

VA treatment records dated in 2008 reflect similar complaints although a slightly lower GAF of 55 was assigned in August 2008.  A private medical report dated in May 2007 reflects that the Veteran was seen for nightmares possibly due to PTSD and prescribed Trazodone, which was effective for him.  VA treatment records dated in 2009 and 2010 reflect that the Veteran had therapy sessions for PTSD with nightmares and depression symptoms.  He reported improved symptoms.  A March 2010 VA treatment note shows that he had tried on Zoloft, which made him jittery, and Trazadone, which made him too sedated.  At this time, he reported recurrence of nightmares, flashbacks, emotional numbing, avoidance of reminders, hypervigilance, depression and panic symptoms.  It was noted that depressive symptoms come and go, lasting for 4 weeks at a time.  He reported depressed mood but denied suicidal ideation.  He reported situational anxiety that occurs only in crowded places, at most, weekly.  Mental status evaluation reflects abnormal gait/posture, sad appearance, slowed motor activity, depressed mood and flat affect, and delusions/hallucinations of odors and sounds of gunshots.  Current GAF was 55 and last GAF was 62.

Report of VA examination dated in April 2012 reflects a diagnosis for PTSD with a GAF score of 58.  It was noted that the Veteran had worked construction as a laborer in October 2008; he was laid off in September 2009; he obtained another construction job in May 2010 that ended in August 2010; he obtained another job in September 2010 and was laid off in November 2010; and thereafter he entered the VA vocational rehabilitation program.  The Veteran indicated that he attended school and was working towards a degree in applied science with a focus on biology; he described his grades as good (3.5 grade point average) and reported getting along with his teachers and other students.  The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  The Veteran speculated that he may have been laid off in the past because of frequent lateness to work, and he noted that he was often late to school as well.  His PTSD symptoms were anxiety, chronic sleep impairment (nightmares), flashbacks, avoidance of reminder or stimuli of Iraq, and a self-described "short fuse."  The Veteran reported that he become irritable if another person is not doing their job or performing it slowly.  The examiner opined that the Veteran was employable, noting that he was applying himself to his studies in school and had plans for a career thereafter.  The examiner noted that the Veteran participated in the life of his family and enjoyed recreational activities.

The PTSD symptoms reported by the Veteran and found on examination do not more nearly reflect the frequency, severity or duration of symptoms required for a higher evaluation.  38 C.F.R. �� 4.126, 4.130, Diagnostic Code 9411.  The Board acknowledges the evidence showing depression and disturbances of mood; however, this has not caused occupational and social impairment with reduced reliability and productivity.  The record shows that the Veteran has had fairly steady employment during the appeal period or participated in vocational rehabilitation with school attendance at a local community college.  While the Veteran speculates that he was laid off because of frequent lateness, he was able to obtain new employment after each lay off in the same industry and later begin a program of studies at a local community college.  The Veteran's ability and to pursue a college degree do not reflect the severity or frequency of disturbances of mood necessary for the next higher rating.  The occasional inability to get out of bed to go to work or lateness to work/school is not the degree of impairment contemplated by the next higher rating.

The Board acknowledges that March 2010 VA treatment note shows a worsening of symptoms, with a GAF score for 55; however, the record as a whole suggests that this was not a permanent increase in symptoms.  The record demonstrates that the Veteran functions well occupationally and socially-he had been gainfully employed during the appeal period and there is no indication that employment was terminated due to PTSD symptoms; the record shows that Veteran attends school, has good grades, and plans on a career; and the Vet reran reported meaningful family interaction to include recreating with his brother and caring for his child.  The GAF scores in the 60s on both VA examinations prior to and after the March 2010 treatment note further supports that the increased symptoms and complaints on this visit were transient and not permanent.

Also, while the evidence shows that the Veteran has anxiety, sleep disturbances, and avoids crowds, his anxiety has been characterized as situational and these symptoms appear not to have impacted his ability to obtain work after layoffs, enter vocational rehabilitation, attend school, earn good grades, and spend time with family.  His anxiety symptoms are not consistent with panic attacks more than once a week.  Neither the lay nor the medical evidence reflect that these symptoms have caused him to regularly miss work or school, or more than an occasional decrease in work efficiency.

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence.  Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned.

The Board assigns greater probative value to report of VA examination dated in April 2012, which found that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks, but that he otherwise generally functioning satisfactorily.  The opinion of the VA examiner is highly probative as it was prepared by a skilled, neutral medical professional after interview of the Veteran and mental status evaluation.  The evidence shows that the Veteran has normal behavior with the exception of some hypervigilance, depression, and anxiety.  There is no impairment of thought content or processes, speech, communication, judgment, memory, or concentration.  The Veteran's symptoms and the medical findings do not more nearly reflect occupational and social impairment with reduced reliability and productivity.  38 C.F.R. � 4.7.

Accordinlgy, the claim is denied and there is no basis for a staged rating.  See Fenderson, supra.  As the evidence of record is not in equipoise, there is no doubt to resolve.  Gilbert, supra.

The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. � 3.321(a).  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria.  Also, the evidence shows that the Veteran has not required frequent periods of hospitalization or lost extended periods of time from work due to his condition.  Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order.  Thun, supra. at 115 (2008).

ORDER

An evaluation in excess of 30 percent for PTSD is denied.

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

Department of Veterans Affairs


judge_norm: JOHN J CROWLEY

disposition: granted

condition: knee

condition: hip

condition: eye

condition: skin

text:
Citation Nr: 1304000
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  10-16 261	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right ankle disability.

2.  Entitlement to service connection for a back disability, to include as secondary to a service-connected right ankle disability.

3.  Entitlement to service connection for an allergic disability.

4.  Entitlement to service connection for a right hip disability, to include as secondary to a service-connected right ankle disability.

5.  Entitlement to service connection for an eye/vision disability.

6.  Entitlement to service connection for a skin disability.

7.  Entitlement to an initial rating in excess of 10 percent for service-connected right ankle sprain with right peroneal tendon tenosynovitis and joint effusion.
8.  Entitlement to an initial rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	J. Moore, Attorney-at-Law

ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel

INTRODUCTION

The Veteran had active service from February to July 1998, April to September 2003, and from December 2003 to March 2005, to include duty in Iraq.  This service was as an activated Army Reservist, and the Veteran spent additional time in the reserve component in an inactive status.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

The Veteran's physical claims file, and the portion contained in the electronic Virtual VA system, have been reviewed.

The issues of entitlement to higher initial ratings for PTSD and a right ankle disorder 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.

FINDINGS OF FACT

1.  The Veteran experienced right knee, back, and allergic symptoms in service, and there are current, chronic disabilities present; there has been a continuity of symptoms from the time of the Veteran's service to the present.

2.  The Veteran does not experience current and chronic right hip and eye disabilities.

3.  To the extent that any current sporadic dermatitis is present, the Veteran first had complaints of this condition several years after his service separation, and there is no indication that any chronic disability of the skin, if present, had causal origins in service.

CONCLUSIONS OF LAW

1.  The criteria for service connection for a right knee disability have been met.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303  (2012).

2.  The criteria for service connection for a back disability have been met.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303  (2012).

3.  The criteria for service connection for an allergic disability have been met.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303  (2012).

4.  The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.310 (2012).

5.  The criteria for service connection for an eye/vision disability have not been met. 38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2012).

6.  The criteria for service connection for a skin disability have not been met. 38 U.S.C.A. � 1110 (West 2002); 38 C.F.R. � 3.303 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303.  That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. � 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology.  See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997).

Certain chronic conditions, such as arthritis, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service.  38 U.S.C.A. � 1112; 38 C.F.R. �� 3.307, 3.309 (2012).

Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. � 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. � 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995).

Allergy/Knee/Back

The Veteran alleges having developed chronic right knee, back, and allergic disorders as a result of his military service.

Evidence of record shows that the Veteran, during his activated service with the Army Reserve, had several episodes of acute back and right knee pain.  Specifically, there was treatment for back pain in August 2003, October 2004 and January 2005, with treatment for knee complaints in October 2004.  The Veteran has reported being in proximity to several explosions during his service in Iraq, and has maintained that he has felt pain in the back and right knee since his release from active duty.

It is noted that the Veteran left his most recent period of active duty not long ago, having separated from service in 2005.  In October 2008, he was afforded radiographic imaging studies which indicated mild retrolisthesis of L3 and L4 on L5, with associated pseudo disc bulges and ligamentum flavum hypertrophy creating thecal sac compression, with mild central spinal canal stenosis at the L3-L4 level.  Disc protrusion and degenerative changes were also noted.

With regard to the right knee, the Veteran was examined in October 2008, and he exhibited grinding, subpatellar tenderness with patellar abnormality in the joint.  He was diagnosed as having patellofemoral syndrome, chondromalacia of the patella, and degenerative changes of the menial meniscus.

Regarding the Veteran's alleged allergic condition, the Board notes that the Veteran exhibited congestion in September 2004 with treatment for sinusitis in February 2005.  While a VA examination offered in November 2008 noted that the ear, nose, and throat were clear of any disorder, a previous VA eye examination of October 2008 noted the presence of allergic rhinoconjunctivitis.  That is, the Veteran was diagnosed as having a current and chronic allergic disorder.

Essentially, the Veteran reported symptoms of right knee and back pain while in service, and he has maintained that these symptoms have persisted to the present.  He has also complained of upper respiratory symptoms in service and following his separation, and a chronic allergic condition was diagnosed subsequent to discharge.  Given that the Veteran is competent to report on that which comes to him through his senses, and that there is no doubt raised with respect to his credibility, the Board is satisfied that the evidence shows that the Veteran had treatment for symptoms associated with current and chronic right knee, back, and allergic disorders while he was in active service, with those symptoms originating during his active duty period.  The continuity of these symptoms to the present has been established, and the Board will grant the claims.  While these problems may now be mild, the nature and extent of the disabilities are not before the Board at this time.

Right Hip/Eye

The Veteran has further alleged that he developed chronic right hip and eye disabilities as a result of active service.  With respect to the right hip, it is also alleged that the service-connected right ankle played a causal or aggravating role in the onset of a current condition.

The Veteran, essentially, asserts to having pain in his lower extremities, and has posited testimony regarding being in proximity to explosions during his active duty which resulted in some sort of fall injury.  As noted above, the Veteran is competent to report on what happened to him in service, and there is no issue to his credibility on reporting what has happened to him.  Furthermore, the Veteran asserts to having an eye/vision disability with origins in active duty.  Essentially, he has complained of problems in visual acuity ("blurred vision").

In the current case, there is simply a dearth of evidence regarding a current and chronic right hip or eye disability.  At a VA examination in October 2008, which addressed the Veteran's joints, no chronic hip disability was reported.  Further, when the Veteran was offered a VA psychiatric examination for an unrelated claim in March 2011, he did not report having hip or eye problems when his medical history was entered.  Allergic rhinoconjunctivitis was assessed in October 2008; however, as noted above, this is a manifestation attributed to the now service-connected allergic disorder.  During the same examination, no diagnosis of current eye disease separate from allergic manifestations was made.

Essentially, while the Veteran may have symptoms of right hip and eye conditions, manifested by hip pain and problems with vision, this is inadequate for VA compensation purposes as the Veteran does not have a diagnosed  hip or eye disability.  Indications following examinations, and reports made in the context of a VA examination, which all reveal no disabilities being present provide highly probative evidence against these claims, outweighing the Veteran's lay statements that he has these disabilities.  Simply stated, service connection is not available for symptoms of a disability; the Board needs an underlying disability.

In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability.  38 U.S.C.A.  � 1110.  Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection.  Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[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 disease incurred in service."  Watson v. Brown, 4 Vet. App. 309, 314 (1993).  This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability."  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

The Board also recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can support a grant of service connection if there is a relationship to service, even where the most recent diagnosis is negative.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  However, where, as in this case, there is no evidence of a hip or eye disorder during the claim period, that holding is inapplicable.

The only evidence supportive of the Veteran's claims consists of the statements of the Veteran himself.  The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson.").

However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder).  Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters.  Specifically, the Federal Circuit commented that such instances include establishing 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.  Id.  Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case, regarding the issue of etiology, taking the above holdings together, the Board finds that the Veteran's contentions regarding diagnoses of hip and eye disabilities and the relationship between his claimed disabilities and his active service are not statements about symptomatology or an observable medical condition.  Rather, these contentions are statements of medical diagnoses and causation.  Such statements clearly fall within the realm of opinions requiring medical expertise.  The Veteran has not demonstrated any such expertise.  Hence, his contentions are not competent medical evidence of the diagnoses or causes of the claimed disabilities.

In short, with regard to any statement the Veteran may have made regarding the question of whether he has a right hip or eye disability, the Board must find that any such statement would be outweighed by what can only be described as a lack of evidence regarding current hip or eye conditions.

Skin Disability

The Veteran contends that he developed a skin disorder as a result of his active duty service.

As with the Veteran's claimed hip and eye disabilities, there is some evidence of symptoms for a skin condition.  Specifically, the Veteran was assessed as having an episode of dermatitis in September 2008, although there is little evidence save for this one clinical note to establish that a chronic skin disability is present.  Indeed, at the Veteran's March 2011 psychiatric examination, where the physical history was reviewed, the Veteran did not report having chronic skin problems.

Even if the Board were to assume, arguendo, that the one episode of dermatitis noted in 2008 represented a chronic disability, the Board must note that the service treatment records do not contain evidence of any treatment, complaint, or diagnosis of a skin disorder of skin symptoms.  Indeed, it is not until three years after service separation that the Veteran sought out treatment for a skin condition, with his initial claim for service connection filed in a time proximate to that treatment (July 2008).  Unlike his right knee and low back disorders, the evidence shows that any skin abnormalities present, to the extent that they exist chronically, first manifest several years after separation from active duty.  In this regard, the Board must note that the probative value of the Veteran's contentions is significantly reduced by the length of time between separation from service and his initial complaint.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2012).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b).  VA must inform 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Compliance with the first Quartuccio element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See 38 U.S.C. � 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).

It is pertinent to note that the Veteran is represented by a private attorney, and that  individual is presumed to have knowledge of what is necessary to substantiate a claim for service connection.  Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case.  The evidence includes service treatment records and post-service pertinent medical records.  Furthermore, the Veteran has been afforded comprehensive VA eye, otolaryngology (ENT), and joint examinations which addressed his claimed conditions.  With respect to the knee, back, and allergic disorders, there is evidence showing continuity of symptomatology since service displayed in these examination reports.  The Veteran, in another VA examination of March 2011, did not report skin, right hip, or eye disabilities, and the reports of all VA examinations of record do not indicate these disorders as being present.  With regard to the claimed skin condition, there is no evidence of complaint for skin problems until several years after service.  Thus, there is no indication of any additional relevant evidence that has not been obtained.  There is no duty to provide another examination or a medical opinion.  See 38 C.F.R. �� 3.326, 3.327 (2012).

In this regard, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.  Here, as the only evidence that some of the Veteran's claimed disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence.  Accordingly, the Board finds that referral for a VA medical examination is not warranted for those claims.

With respect to the claims allowed in the decision below, they represent a full grant of the benefits sought, and accordingly, there is no concern as to the timing and content of VCAA notice with respect to these claims.

ORDER

Entitlement to service connection for a right knee disability is granted.

Entitlement to service connection for a back disability is granted.

Entitlement to service connection for an allergic disability is granted.

Entitlement to service connection for a right hip disability is denied.

Entitlement to service connection for an eye/vision disability is denied.

Entitlement to service connection for a skin disability is denied.

REMAND

The Veteran's representative has alleged that the service-connected right ankle disability continues to grow in severity and that there has been continual treatment for the condition.  He has specifically requested that a new examination be afforded which considers the allegations of a worsening condition.

In cases where an increase in rating is at issue, it is first and foremost necessary to have a current understanding of the service-connected disability picture.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Hyder v. Derwinski, 1 Vet. App. 221 (1991). Thus, in order to ensure fairness in consideration of the Veteran's claim, a VA examiner should evaluate the Veteran's service-connected right ankle and should elaborate as to the level of severity associated with the disability.  Additionally, all outstanding VA treatment records pertaining to the right ankle should be obtained, and should the Veteran have any outstanding private treatment, he should supply those records or, upon submission of the appropriate waivers, advise VA of the dates and location of the treatment and VA will secure the records for him.

With regard to a claim for a higher initial rating for service-connected PTSD, the Veteran's attorney filed a notice of disagreement with the assigned 30 percent initial rating, and he has informed the Board that this issue is still being developed by a Decision Review Officer.  As of yet, no statement of the case has been issued to the Veteran regarding this claim for a higher rating.

Under 38 U.S.C.A. � 7105(a) (West 2002), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the appellant.  In essence, the following sequence is required: There must be a decision by the RO, the appellant must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the appellant in a Statement of the Case, and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal.  See 38 C.F.R. �� 20.200, 20.201, 20.202, and 20.203 (2012).

In a March 2011 rating decision, the RO granted the Veteran service connection for PTSD.  In a correspondence received in July 2011, the Veteran's representative disagreed with the percentage of initial disability rating assigned in that decision.

As such, the Board finds that the appellant timely submitted a notice of disagreement in July 2011as to the assigned initial rating.  See 38 C.F.R. � 20.201 (communication expressing dissatisfaction with RO decision and desire to contest the result constitutes a notice of disagreement; special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (VA has always been, and will continue to be, liberal, in determining what constitutes a notice of disagreement).

A statement of the case has not been issued regarding this claim, and a remand is necessary so that such a document may be issued.  The filing of a notice of disagreement initiates the appeal process.  Manlincon v. West, 12 Vet. App. 238 (1999).  The Board is required to remand, rather than refer, this issue (entitlement to a separate evaluation in excess of 10 percent disabling for right lower extremity radiculopathy).  Id.

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of all outstanding VA medical records pertaining to treatment of the service-connected right ankle (if any).

2.  Schedule the Veteran for a VA examination.  The examiner is asked to conduct all necessary testing to determine the current level of severity associated with the service-connected right ankle disorder.  In addition to discussing range of motion, it would be most helpful if the examiner were to assess any functional limitations associated with the ankle, to include fatigue, weakness, instability, or additional loss of motion associated with repeated motion.  Any conclusions reached in the examination report should be accompanied by supporting rationales.

3.  Following the above-directed development, re-adjudicate the Veteran's claim.  Should the disposition remain less than fully favorable, issue an appropriate supplemental statement of the case to the Veteran and his representative and forward the claim to the Board for adjudication.

4.  With respect to the timely notice of disagreement filed with the initial rating assigned for service-connected PTSD, issue an appropriate statement of the case to the Veteran and his representative.  Allow the Veteran to submit additional evidence in support of his claim should he so elect, and provide him information as to how to perfect a substantive appeal to the Board.  The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue.  Thereafter, this issue is to be returned to the Board only if an adequate and timely substantive appeal is filed.

The appellant 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. 2012).

______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs