judge_norm: ROBERT E SULLIVAN

condition: radiculopathy

text: 3. Entitlement to TDIU. [is remanded]

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).

text:
Citation Nr: 1119000
Decision Date: 05/17/11    Archive Date: 05/26/11

DOCKET NO.  05-36 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1.  Entitlement to an increased rating for service-connected posttraumatic stress disorder (PTSD), currently evaluated 50 percent disabling.

2.  Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure or as secondary to diabetes mellitus, type II.

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

REPRESENTATION

Veteran represented by:	Joseph R. Moore, Esq.

WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

K. K. Buckley, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United Stats Army from September 1966 to June 1968.  Service in the Republic of Vietnam is indicated by the record.  The Veteran is the recipient of the Purple Heart Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta Maine.  During the course of the appeal, the Veteran moved to Massachusetts; original jurisdiction now resides in the Boston, Massachusetts RO.

In February 2007, the Board remanded the Veteran's claims so that the Veteran could be afforded a personal hearing before a Veterans Law Judge.  In September 2007, the Veteran testified at a Board hearing before the undersigned at the RO in Boston, Massachusetts.  A transcript of that hearing has been associated with the Veteran's claims folder.

In October 2007, the Board again remanded the Veteran's claims for further evidentiary development.  The VA Appeals Management Center (AMC) continued the previous denials in an April 2009 supplemental statement of the case (SSOC).  The Veteran's VA claims folder has been returned to the Board for further appellate proceedings.

In a July 2009 decision, the Board increased the disability rating assigned to the Veteran's service-connected PTSD to 50 percent but denied a higher rating; the Board also denied the Veteran's claim of entitlement to service connection for peripheral neuropathy and remanded his claim of entitlement to service connection for a skin disability.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court).  In May 2010, the Court partially vacated the Board's July 2009 decision and remanded the PTSD and peripheral neuropathy issues to the Board for further consideration pursuant to a Joint Motion for Partial Remand dated in March 2010.

In an October 2010 letter, the Board provided the Veteran and his attorney the opportunity to submit additional evidence and argument in support of the appeal.  In response to the Board's letter, the Veteran's attorney submitted further evidence and argument in April 2011.  At that time, the Veteran's attorney also submitted a written waiver of local consideration of this evidence.  This waiver is contained in the Veteran's claims folder.  See 38 C.F.R. �� 19.9, 20.1304(c) (2010).

The Veteran has alleged inability to retain employment due to his service-connected PTSD.  See, e.g., the Veteran's attorney's written argument dated April 2011.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  As such, the issue is now properly before the Board.  See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  The Veteran will be notified if further action on his part is required.

Issue not on appeal

As indicated above, the July 2009 Board decision remanded the Veteran's claim of entitlement to service connection for skin disability.  In a July 2009 rating decision, the AMC granted the Veteran's skin disability claim and assigned a 10 percent disability rating effective July 15, 2004.  To the Board's knowledge, the Veteran has not disagreed with that decision.  That matter has accordingly been resolved.  See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection].

FINDINGS OF FACT

1.  The competent medical evidence of record demonstrates that the Veteran's service-connected PTSD more closely approximates total occupational and social impairment.

2.  On April 26, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of his appeal as to the peripheral neuropathy claim was requested.

CONCLUSIONS OF LAW

1.  Resolving all doubt in the Veteran's favor, the criteria for the assignment of a disability rating of 100 percent for the Veteran's PTSD have been met.  38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. � 4.130, Diagnostic Code 9411 (2010).

2.  The criteria for the withdrawal of the Substantive Appeal by the Veteran as to the issue of entitlement to service connection for peripheral neuropathy have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. �� 20.202, 20.204 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran asserts entitlement to an increased disability rating for service-connected PTSD.  As will be discussed below, the Veteran has indicated his intent to withdraw his appeal as to the issue of entitlement to service connection for peripheral neuropathy.  Also, as indicated above, the issue of entitlement to TDIU will be addressed in the Remand section below.
The Board will discuss certain preliminary matters.

Compliance with the Joint Motion's directives

As was noted in the Introduction, the Veteran's increased rating claim involves a Joint Motion for Partial Remand by the Court.  The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. � 7104(d)(1).  A remand is meant to entail a critical examination of the justification for the decision."  The Board's analysis has been undertaken with that obligation in mind.

The March 2010 Joint Motion for Partial Remand found that, in denying the Veteran entitlement to an increased disability rating for PTSD in excess of 50 percent, the Board failed to provide adequate reasons or bases addressing whether the Veteran's depression symptoms entitled him to a rating in excess of 50 percent.  In particular, the parties indicated that the Board failed to appropriately consider evidence of the Veteran's inability to establish and maintain effective relationships.  The parties further stated that the Board failed to consider the 2008 VA examiner's findings that the Veteran had made a poor adjustment since his last examination in its determination that staged ratings were not warranted.  Additionally, the parties indicated that the Board improperly proceeded in its decision without first obtaining the Veteran's Social Security Administration (SSA) records and his VA vocational rehabilitation records.

As indicated above, following the issuance of the October 2010 letter in which the Board provided the opportunity to submit additional evidence and argument in support of the appeal, the Veteran's attorney submitted the Veteran's SSA records and his missing VA vocational rehabilitation records.  Accordingly, the need for an additional Board remand in order for said records to be obtained has been abrogated.  As will be detailed below, the Board has undertaken its analysis in full consideration of the Joint Motion's directives.  The Board is confident that if any additional problems existed, the Court would have brought them to the Board's attention.  See Harris v. Derwinski, 1 Vet. App.180, 183 (1991) [holding that the "Court will (not) review BVA decisions in a piecemeal fashion"].

The Veterans Claims Assistance Act of 2000

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

VCAA notice letters were sent to the Veteran regarding his increased rating claim in August 2004, October 2004, November 2004, and April 2011.  The Board need not, however, discuss the sufficiency of either the VCAA notice letters or VA's development of the claim in light of the fact that the Board is granting the claim.  Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal.

In a July 2006 letter, the Veteran also received notice regarding degree of disability and effective date as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The Board observes that all due process concerns have been satisfied.  See
38 C.F.R. � 3.103 (2010).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  He has retained the services of an attorney and, as indicated above, testified at a personal hearing before the undersigned.

Accordingly, the Board will proceed to a decision.

1.  Entitlement to an increased disability rating for service-connected PTSD, currently evaluated 50 percent disabling.

Relevant law and regulations

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. � 1155 (West 2002); 38 C.F.R. �� 3.321(a), 4.1 (2010).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4 (2010).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.
See 38 C.F.R. � 4.7 (2010).

A request for an increased rating must be viewed in light of the entire relevant medical history.  See 38 C.F.R. � 4.1 (2010); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991).  However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings."

The Veteran's psychiatric disorder is currently rated under 38 C.F.R. � 4.130, Diagnostic Code 9411 [PTSD].  Diagnostic Code 9411 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the Veteran's case (PTSD).  In any event, with the exception of eating disorders, all mental disorders including major depressive disorder and PTSD are rated under the same criteria in the rating schedule.  Therefore, rating under another diagnostic code would not produce a different result.  Moreover, the Veteran has not requested that another diagnostic code be used.

Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411.  Under these criteria, PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. � 4.130 (2010).  The pertinent provisions of 38 C.F.R. � 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows:

100 percent:  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 and place; memory loss for names of close relatives, own occupation or name.

70 percent:  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 work-like setting); inability to establish and maintain effective relationships.

50 percent:  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 establishing effective work and social relationships.

30 percent: 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, and mild memory loss (such as forgetting names, directions, recent events).

See 38 C.F.R. � 4.130, Diagnostic Code 9411 (2010).

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].

GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work).  GAF scores ranging between 61 to 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, and has some meaningful interpersonal relationships.  Scores ranging from 51 to 60 reflect more 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, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing in school).  A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communications or judgment or inability to function in almost all areas.  A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute).  A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death.

See 38 C.F.R. � 4.130 (2010) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes].

Analysis

The Veteran seeks a disability rating in excess of the currently assigned 50 percent for his service-connected PTSD.

After having carefully reviewed the record, and for reasons explained in greater detail below, the Board concludes that a 100 percent disability rating is warranted under the schedular criteria.

As was described above, under 38 C.F.R. � 4.130, Diagnostic Code 9434 (2010), in order to warrant a 100 percent disability rating, the evidence must show 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 and place; memory loss for names of close relatives, own occupation or name.

Critically, the totality of the evidence of record indicates that the Veteran's cumulative PTSD symptomatology more closely approximates total social and occupational impairment.  The Veteran recently submitted a March 2011 letter from Dr. M.L.C. which detailed a current assessment of the Veteran's psychological symptomatology.  Crucially, Dr. M.L.C. indicated, "I have reviewed the medical record as well as personally interviewed the Veteran . . . regarding the severity of his PTSD.  My review of the medical records and discussion with the Veteran led me to conclude that [his] PTSD has been totally disabling, intractable, progressive, and the cause of complete incapacity to function in any social or occupational setting since at least 2000, when he first sought help for his PTSD symptoms."  The March 2011 report continued, "[the Veteran's] PTSD is profound, severe, and intractable.  He has been completely impaired since 2000 from any kind of real occupational environment.  Working for his friend until 2006 was not a job.  He was sheltered, protected, and given meaningless work in order to provide him with a paycheck.  This was not employment, but friendship."

Dr. M.L.C.'s findings are supported by those documented in the March 2007 Massachusetts Disability Determination Services (DDS) psychological assessment, in which the reviewing licensed clinical social worker found that the Veteran's "ability to deal with work stress, to function independently, and to maintain attention and concentration may be somewhat limited."  The report continued, "[a]pparently, up until a couple of years ago, he was managing to work, but he did agree that the symptoms of this disorder he thinks have worsened because he is not working and they have more opportunity to come to mind.  Therefore, I would say that they might very well interfere more now in a work situation with stress.  So, I would say that these functions are limited.  He also said that he is unable to focus, so that function would be severely limited.  His ability to understand, remember, and carry out complex and detailed job instructions, as well as simple ones, I would say is also quite limited because of anxiety and depression."

In his March 2011 report, Dr. M.L.C. also identified significant social isolation as a continuing symptom of the Veteran's service-connected PTSD; specifically, he stated that the Veteran's disabling illness "has essentially caused him to be an outcast from society."  The Board notes that this finding is consistent with the findings of the July 2008 VA examiner who indicated that the Veteran's "attitude towards social interactions is that he would prefer 'just being left alone.'"  Similarly, the December 2007 VA examiner reported that the Veteran "is socially isolated, resentful, angry, depressed . . . has had one close friend whom he sees infrequently and avoids connections with others including his children."

As for specific criteria found in 38 C.F.R. � 4.130, the medical evidence of record demonstrates that the Veteran does not experience gross impairment in thought processes and communication.  Although, as noted above, the Veteran's ability to focus and concentrate is significantly impaired.  See the March 2011 assessment by Dr. M.L.C.; see also the March 2007 Massachusetts DDS psychological assessment.  There is also no medical evidence of persistent delusions or hallucinations.

Further, although there is no medical evidence of persistent danger of the Veteran hurting others, there is some evidence of a persistent danger of the Veteran hurting himself.  Specifically, Dr. M.L.C. noted that the Veteran "described intermittent suicidal ideation, at times with plan and intent."  See the March 2011 psychological assessment from Dr. M.L.C.

With regard to memory loss, the Veteran has reported experiencing short-term memory impairment.  Specifically, the December 2007 VA examiner stated that the Veteran's immediate memory is "mildly impaired," in that he forgets new information and must write down information such as names, phone numbers, appointments, and directions."  Consistently, the July 2008 VA examiner noted that the Veteran's memory is "poor with one of three items recalled after a short time delay."  However, memory loss for names of close relatives, the Veteran's own name, and the like are not demonstrated by the objective medical evidence of record.  There is also no medical and lay evidence to suggest that the Veteran experiences the inability to perform activities of daily living including maintenance of minimal personal hygiene.

Although the Veteran does not meet all of the schedular criteria contained in Diagnostic Code 9411 for the assignment of a total [100 percent] disability rating, the Board's inquiry is not necessarily limited to the criteria found in the VA rating schedule.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002) [the criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating].  As indicated above, the cumulative evidence of record indicates that the Veteran's PTSD symptoms result in his total social and occupational impairment.

Accordingly, even though all of the criteria for a 100 percent disability rating have not been met, the Board finds that the overall level of the Veteran's psychiatric symptomatology, being reflective of his major impairment in occupational and social functioning, approaches that which warrants the assignment of a 100 percent rating under Diagnostic Code 9411.  See 38 C.F.R. � 4.7 (2010).  Accordingly, a 100 percent rating is assigned.

In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame.  See 38 U.S.C.A. � 5110 (West 2002).

Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  The RO determined the date of claim to be July 15, 2004.  Therefore, pursuant to Hart the question to be answered by the Board is whether any different rating should be assigned for the relevant time period under consideration [July 15, 2003 to the present].

Crucially, as indicated above, Dr. M.L.C. specifically found that the Veteran's PTSD symptomatology has rendered him incapable of functioning "in any social or occupational setting since at least 2000, when he first sought help for his PTSD symptoms."  Dr. M.L.C. based this conclusion on a thorough review of the Veteran's medical records and examination of the Veteran.  Dr. M.L.C. noted that the Veteran's failure to seek treatment for his psychological problems and his underreporting of said symptomatology is consistent with the nature of his psychiatric disease.  See the March 2011 psychological assessment of Dr. M.L.C.  Moreover, the Board notes that the medical evidence of record, including evaluation and treatment records, documents the Veteran's increasingly severe psychiatric symptomatology.  See the VA examinations dated December 2007 and July 2008; see also the Massachusetts DDS examination dated March 2007; see also the March 2011 assessment from Dr. M.L.C.  Accordingly, the medical evidence shows that the Veteran's psychiatric symptomatology has not changed appreciably during the appeal period.  The Board therefore finds that the 100 percent disability ratings may be assigned to service-connected PTSD for the appeal period.

In summary, for reasons and bases expressed above, it is the Board's decision that a 100 percent disability rating is assigned for the Veteran's service-connected PTSD.  The appeal is allowed.

2.  Entitlement to service connection for peripheral neuropathy, to include as due to herbicide exposure or as secondary to diabetes mellitus, type II.

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  See 38 C.F.R. � 20.202 (2010).  Withdrawal may be made by the appellant or by his authorized representative.  See 38 C.F.R. � 20.204 (2010).

In a signed statement received on April 26, 2011, the Veteran, through his attorney, expressed his intent to withdraw his appeal as to the issue of entitlement to service connection for peripheral neuropathy.  See 38 C.F.R. � 20.204 (2010).
Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  The Veteran has withdrawn his appeal as to the issue of entitlement to service connection for peripheral neuropathy.  Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue.  Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for peripheral neuropathy and the appeal is therefore dismissed.

ORDER

An increased disability rating of 100 percent is granted for the service-connected PTSD, subject to controlling regulations applicable to the payment of monetary benefits.

The Veteran's appeal as to the issue of entitlement to service connection for peripheral neuropathy is dismissed.

REMAND

3.  Entitlement to TDIU.

As described in the Introduction, the Veteran has raised a claim for TDIU.  In Rice, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  As such, the issue is properly before the Board.  See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996).  After having carefully considered the Veteran's TDIU claim, and for reasons expressed immediately below, the Board finds that the Veteran's claim must be remanded for additional development.  Critically, the Veteran has not received notice pursuant to the VCAA as it pertains to his recent claim for TDIU.  If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board.  See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so.

Accordingly, the case is REMANDED for the following action:

1. VBA should review the Veteran's claims folder and ensure that all notification and developmental action required by the VCAA is completed.  In particular, the RO should ensure that notification is provided to the Veteran regarding the requirements and development procedures necessary to substantiate a claim of TDIU.

2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  See 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. 2010).

______________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: J A MARKEY

disposition: granted

text:
Citation Nr: 1120000
Decision Date: 05/23/11    Archive Date: 06/06/11

DOCKET NO.  03-15 101	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky

THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

B. R. Mullins, Associate Counsel

INTRODUCTION

The Veteran had active service from January 1962 to May 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs Regional Office (RO) in Louisville, Kentucky.  This claim was previously remanded by the Board in July 2005 and February 2009 for additional evidentiary development.

The Veteran requested and was afforded a hearing before the undersigned Veterans Law Judge at the RO in Louisville, Kentucky in September 2003.  A written transcript of this hearing has been prepared and incorporated into the evidence of record.

FINDING OF FACT

The Veteran's PTSD manifested as a result of his military service in the Republic of Vietnam.

CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for PTSD have been met.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.303, 3.304(f)(3), 4.125(a) (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

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. 2009); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  In this case, the Board is granting in full the benefit sought on appeal.  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 will not be further discussed.

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  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); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

To establish service connection, there must be:  (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).

Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. � 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).

A diagnosis of PTSD must be established in accordance with 38 C.F.R. � 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  See 38 C.F.R. � 3.304(f).  The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD.  The Court acknowledged the change from an objective "would evoke ... in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror).  Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone."  Cohen, 10 Vet. App. at 140-41.

If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. � 3.304(f)(1).  See also 38 U.S.C.A. � 1154(b).

The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A � 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis.  See VAOPGCPREC 12-99 (October 18, 1999).

If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor.  Doran v. Brown, 9 Vet. App. 163, 166 (1996).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996).

The fact that a veteran, who had a noncombatant military occupational specialty, was stationed with a unit that was present while enemy attacks occurred would strongly suggest that he was, in fact, exposed to such attacks.  Pentecost v. Principi, 16 Vet. App. 124 (2002).  In other words, a veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally.  A stressor need not be corroborated in every detail.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).

The regulations pertaining to PTSD were recently amended, and 38 C.F.R. �3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity."  Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal.  Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations.  The new regulatory provision requires that:  (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor.  Id.  The liberalizing criteria contained in the new � 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date.

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Relevant Facts and Analysis

The Veteran contends that he is entitled to service connection for PTSD.  Having reviewed the evidence of record, the Board finds that the evidence in this case is at least in equipoise.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As such, entitlement to service connection for PTSD is warranted.

The Veteran's service treatment records do not demonstrate that he was diagnosed with a psychiatric disorder during active military service, or, that he was treated for any psychiatric symptomatology during active duty.  While the Veteran's DD-214 does not reflect that the Veteran was awarded any medals or awards indicative of service in Vietnam, personnel records do confirm that the Veteran was at DaNang Air Base in Vietnam from June 1965 to October 1965 and that he participated in operations against the VietCong forces while there.  Records also confirm that the Veteran served in the 3rd Medical Battalion (3dMedBn) while in Vietnam and that he also worked as a warehouseman.

There is also no evidence demonstrating that a psychosis was diagnosed within one year of the Veteran's separation from active duty.  As such, the presumption of in-service incurrence is not applicable.  See 38 C.F.R. �� 3.307, 3.309.  The first post-service evidence of record demonstrating that the Veteran was being treated for a psychiatric condition is a December 1991 private psychiatric evaluation.  According to the report, the Veteran was having a lot of difficulty adjusting to his inability to do what he had done in the past.  The Veteran also reported that anything to do with war upset him but that he was not seeking counseling for this.  The examiner concluded that based on the examination of the Veteran, there was adequate information to support a mental health diagnosis.  The Veteran was diagnosed with a single episode of major depression at this time.  An October 1994 private treatment record assigned an Axis I diagnosis of PTSD, delayed onset.

The record demonstrates that the Veteran subsequently sought psychiatric treatment from VA on an outpatient basis.  A September 2002 record assigned Axis I diagnoses of a mood disorder and rule out PTSD.  A December 2002 record indicates that the Veteran had symptoms of PTSD.  The Veteran again indicated that he was not interested in seeking psychiatric treatment.

The Veteran was also afforded a VA psychiatric examination in May 2007.  It was noted that the Veteran served in Vietnam and witnessed combat situations outside of DaNang Air Base.  The Veteran reported being short-tempered and moody with his wife since his separation from active duty.  The Veteran reported that he assisted in a morgue, carrying deceased and severely mutilated bodies off of helicopters into the morgue.  He also testified to assisting in the cleanup of these bodies and then sending them back to the United States.  Finally, the examiner noted that the Veteran reported frequent involvement in guard duty.  The examiner assigned an Axis I diagnosis of PTSD and alcohol abuse, in full remission.

The Veteran was afforded an additional VA examination for his PTSD in September 2010.  The Veteran agreed that he had not received psychiatric treatment during his military service or for many years following his separation from active duty.  The examiner indicated that the Veteran's psychometric scores were indicative of PTSD.  The examiner noted that the Veteran described many of the same in-service stressors as he did during his previous examination, including his work in a warehouse handling bodies, working on guard duty, and experiencing traumatic war-related events.  The examiner further indicated that the in-service stressors claimed by the Veteran were related to his fear of hostile military activity in Vietnam and that they were fully adequate to support a diagnosis of PTSD.  The examiner assigned an Axis I diagnosis of PTSD and concluded that the Veteran's symptomatology was not severe enough to interfere with occupational and social functioning.

The examiner then proceeded to indicate that the Veteran's PTSD was most likely caused by or a result of his claimed in-service stressors.  The examiner noted that the Veteran related his PTSD to events that occurred in Vietnam, and the examiner again stressed that, as reported, these events were fully sufficient to support a diagnosis of PTSD.  The examiner also opined that the Veteran's in-service stressor was directly related to his reported experiences as a warehouseman and assisting with morgue duties during his Vietnam service rather than any specific fear of hostile military or terrorist activity.  The examiner then indicated that the Veteran met all the DSM-IV criteria for a diagnosis of PTSD.

Having considered all of the above evidence, the Board finds that it is at least in equipoise, and as such, service connection for PTSD is warranted.  The Veteran's personnel records confirm that he experienced combat situations while serving in Vietnam.  The Veteran also testified during his September 2003 hearing that he performed activities such as guard duty while serving in Vietnam.  The record also contains a letter from a fellow soldier dated March 2010.  According to this soldier, he served with the Veteran and they witnessed wounded and dead bodies and would perform guard duty, fearing for their lives.  Finally, the September 2010 VA examiner concluded that the Veteran's stressors were related to his fear of hostile military activity.

As already noted, the regulations pertaining to PTSD were recently amended, and 38 C.F.R. �3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity."  Rather, lay statements alone can be used to establish the occurrence of an in-service stressor.  The evidence of record confirms that the Veteran was in Vietnam and that he was exposed to situations involving operations against the VietCong.  The new regulatory provision only requires that:  (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor.  Id.  According to the September 2010 VA examiner, the Veteran's symptomatology was related to fear of hostile military activity in Vietnam, and that this activity was fully adequate to support an Axis I diagnosis of PTSD.  As such, the preponderance of the evidence of record demonstrates that, under the revised criteria pertaining to PTSD, the Veteran is entitled to service connection.

The Board notes that the Veteran's claim was denied in March 2011 because the September 2010 VA examiner also stated that the Veteran's in-service stressor was directly related to his reported experiences as a warehouseman and assisting with morgue duties, rather than due to any "specific" fear of hostile military or terrorist activity.  However, when viewed in light of the full VA examination report, this statement does not demonstrate that the Veteran did not serve in an area where he feared hostile military activity.  The Veteran testified during his examination that his duties as a warehouseman also included guard duty.  Furthermore, the September 2010 VA examiner noted in an earlier paragraph that the Veteran's claimed in-service stressor of working as a warehouseman was in fact directly related to his fear of hostile military activity.  Finally, the VA examiner conceded that the Veteran did serve in an area involving fear of hostile military activity.  Therefore, when viewed in its entirety, the September 2010 VA examination report does relate the Veteran's PTSD to a fear of hostile military activity.

Having afforded the Veteran the full benefit of the doubt, the Board finds that he is entitled to service connection for posttraumatic stress disorder.  The claim is granted.

ORDER

Entitlement to service connection for PTSD is granted.

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

Department of Veterans Affairs


judge_norm: THERESA M CATINO

disposition: denied

text:
Citation Nr: 1121000
Decision Date: 05/31/11    Archive Date: 06/06/11

DOCKET NO.  09-18 883A	)	DATE
	)
	)

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

THE ISSUE

Entitlement to retroactive payment of educational assistance benefits under Chapter 35 of Title 38 of the United Stated Code (Survivors' and Dependents' Education Assistance (DEA)).

ATTORNEY FOR THE BOARD

S. M. Kreitlow

INTRODUCTION

The Veteran had active military service from July 1967 to July 1969.  The appellant is the Veteran's child.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

FINDING OF FACT

The appellant, who is the Veteran's son, failed to file his claim for DEA benefits within one year of the initial rating decision awarding basic eligibility to DEA benefits from September 22, 1987.

CONCLUSION OF LAW

The criteria for retroactive payment of DEA benefits have not been met.  38 U.S.C.A. � 5113 (West 2002 & Supp. 2010); 38 C.F.R. � 21.4131 (2010)

REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2010) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits.   For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. �� 21.1031 and 21.1032.  In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law.  VA's duties to notify and assist the Veteran do not affect matters on appeal when the issue is limited to statutory interpretation.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed).  There is no possibility that any additional notice or development would aid the appellant in substantiating his claim.  Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error.

Analysis

The basic facts are not in dispute.  The appellant is the Veteran's natural born son.  He was born on May [redacted], 1966.  The appellant turned 18 years old in May 1984 and age 26 in May 1992.

By rating decision dated August 16, 2004, an earlier effective date was awarded for the grant of individual unemployability with a new effective date of September 22, 1987.  In addition, the RO established basic eligibility for DEA benefits from September 22, 1987.  The Veteran was notified of the rating decision on September 2, 2004.  The appellant filed his application for DEA benefits on February 25, 2008.

DEA benefits are provided pursuant to 38 United States Code, Chapter 35 to certain qualifying dependents of certain classes of veterans.  One such class of veterans is those who died of a service-connected disability, and one such qualifying group of dependents consists of the children of such veterans.  38 U.S.C.A. � 3501(a)(1)(A)(i).  Generally, the basic ending (delimiting) date for DEA benefits is the eligible child's 26th birthday.  38 U.S.C.A. � 3512 (a); 38 C.F.R. � 21.3040 (a), (b), (c).  The delimiting date may be modified if certain circumstances occur between the eligible child's 18th and 26th birthdays.  These exceptions apply to children who are enrolled in an ongoing course of approved educational DEA benefits and, due to certain events, warrant an extension of their delimiting ending date as a result.  See 38 U.S.C.A. � 3512(a); 38 C.F.R. �� 21.3040(d), 21.3041, 21.3043.

The Board notes initially that, under the general provision, the appellant would not be entitled to DEA benefits because he was over the age of 26 at the time the Veteran was notified of the establishment of basic eligibility in September 2004.  However, the law and regulations provide alternative provisions for establishing the commencing date when there has been an adjusted effective date, such as in this case.

The assignment of an effective date for Chapter 35 educational assistance benefits shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.  38 U.S.C.A. 5113(a).  Additionally, the governing regulation generally provides that the effective date for the commencing date of an award of Chapter 35 benefits (when the award is the first award for the program of education the eligible person is pursuing) will be determined based on the latest of the following dates:  the beginning date of eligibility as determined by the applicable regulation (in this case, section 21.3041 pertaining to benefits for children of veterans); one-year prior to the date of claim as determined by � 21.1029(b); the date certified by the educational institution; or the effective date of the course approval, or one year before VA receives the approval notice, whichever is later.  38 C.F.R. � 21.4131(d)(1)(i).  However, 38 U.S.C.A. � 5113(b) provides that, under certain circumstances, VA may consider the individual's application as having been filed on the eligibility date of the individual, if that date is more than one-year before the date of the initial rating decision.  38 U.S.C.A. � 5113(b)(1).  Specifically, the criteria for an earlier effective date require a showing that the claimant is an eligible person.  In order to be an eligible person, an individual must:  (1) submit to VA an original application for DEA benefits within one year of the date VA made the rating decision; (B) claim such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received; and (C) would have been entitled to educational assistance for such course pursuit if the individual had submitted an application on his or her eligibility date.  38 U.S.C.A. � 5113(b)(2).  The term "initial rating decision" means with respect to an eligible person a decision made by VA that establishes (i) service connection for the death of the person from whom such eligibility is derived or (ii) the existence of the service-connected total disability permanent in nature of the person from whom such eligibility is derived, as the case may be.  38 C.F.R. � 5113(b)(3)(C).  An award of benefits pursuant to section 5113(b) is not mandated by statute, but based upon the use of 'may' in the statute, the decision to award benefits under this provision is expressly committed to the discretion of VA's Secretary.  Friedsam v. Nicholson, 19 Vet. App. 555 (2006).

In addition, VA regulation provides that, when determining the commencement date when there has been an adjusted effective date for award of DEA benefits based on an original claim, VA will consider an eligible person's application as having been filed on his or her eligibility date if the eligibility date is more than one year before the date of the initial rating decision that establishes either that the veteran's death is service-connected or the veteran has a permanent and total disability; and the eligible person files his or her original application for DEA benefits with VA within one year of the initial rating decision; the eligible person claims education assistance for pursuit of an approved program of education for a period that is more than one year before the date VA receives his or her original claim; VA either received the original application on or after November 1, 2000, or received the original application and, as of November 1, 2000, either had not acted on it or had denied it in whole or in part but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and the eligible person would have been eligible to DEA benefits if he or she had filed a claim on his or her eligibility date.  38 C.F.R. � 21.4131(e).
Here, the Board notes that the "initial rating decision" referred to in the statute and regulation is the RO's rating decision issued to the Veteran September 2, 2004.  There is no question that, in this rating decision, the Veteran was awarded a retroactive award of total and permanent disability due to individual unemployment to September 22, 1987, and that basic eligibility for DEA benefits was established from September 22, 1987.  There is also no question that the appellant did not file his original claim for DEA benefits until February 25, 2008, more than two years after notification of the initial rating decision.  In order to be an "eligible person" in such circumstances as in the present case, the law clearly requires that the individual's original application must be filed with VA within one year of the initial rating decision.  Plainly the appellant's original application was untimely and, therefore, he is not an eligible person under the alternate provisions for establishing the commencing date under 38 U.S.C.A. � 5113(b); 38 C.F.R. � 21.4131(e).  Thus, entitlement to retroactive payment of DEA benefits is not warranted.

To the extent that the appellant and/or the Veteran argues that the commencing date should go back to September 22, 1987, as this is the date set by the RO as the effective date of basic eligibility for DEA benefits, the Board finds the argument advanced to be couched in equity.  Although sympathetic to the appellant, however, the Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. �� 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).

Furthermore, to the extent that the appellant maintains that he was not aware of or informed of the filing deadlines for the benefit he seeks, it has been held by the Courts that such matters as the appellant contends are no exception to VA regulations.  See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947).  The Court of Appeals for Veterans Claims has noted that the United States Supreme Court has recognized that persons dealing with the United States government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance.  See Morris, 1 Vet. App. at 260.  Moreover, there is no statutory or regulatory provision for any exceptions to the filing requirements that apply to this case.  Indeed, regulations specifically applicable to Chapter 35 provide that VA's failure to give a claimant or potential claimant any form or information concerning the right to file a claim, or to furnish notice of the time limit for the filing of a claim, will not extend the time for filing.  38 C.F.R. � 21.1033(a).  Consequently, this argument is unprevailing.  See also Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that the provisions of 38 U.S.C.A. � 7722(b) and (c) - which direct VA to distribute information pertaining to eligibility for benefits - are hortatory and cannot be relied upon to establish an effective date earlier than that otherwise permitted by statute); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that Chapter 30 benefits cannot be awarded on the basis of the VA's failure to provide a veteran with accurate information pertaining to eligibility).

In sum, the Board can find no provision in the law that would allow the appellant's claim to be granted.  Consequently, the appellant's request for retroactive payment of DEA benefits must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law.

ORDER

Entitlement to retroactive payment of DEA benefits is denied.

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

Department of Veterans Affairs


judge_norm: DEBORAH W SINGLETON

condition: headache

text:
Citation Nr: 1122000
Decision Date: 06/07/11    Archive Date: 06/20/11

DOCKET NO.  10-35 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for neuralgia headaches.

REPRESENTATION

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

WITNESSES AT HEARING ON APPEAL

Veteran and neighbor, E.L.

ATTORNEY FOR THE BOARD

Saira Spicknall, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1951 to November 1953 and from October 1957 to October 1961.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the North Little Rock, Arkansas Department of Veterans' Affairs (VA) Regional Office (RO).  In a May 2009 rating decision, the RO granted service connection for headaches due to gunshot wound, face and jaw below right orbit, and assigned a noncompensable (0 percent) rating, effective November 20, 2008.  By a January 2010 rating decision, the RO assigned the Veteran an initial 10 percent disability rating for headaches, effective October 7, 2009, and continued the noncompensable rating assigned from November 20, 2008.  Thereafter, an August 2010 rating decision granted an initial 10 percent disability rating for neuralgia headaches, effective November 20, 2008.

The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in May 2011.  A transcript of that hearing has been associated with the claims file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDING OF FACT

The Veteran's neuralgia headaches are productive of very frequent, completely prostrating, and prolonged attacks occurring approximately seven to 10 days each month which are resistant to treatment.

CONCLUSION OF LAW

The criteria for an initial disability rating of 50 percent for neuralgia headaches have been met.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. � 4.124a, Diagnostic Code 8100 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. � 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. � 3.159 (2010).  The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the Appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim.  See generally VCAA.

In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.

Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.A. � 1155; 38 C.F.R. � 4.1 (2010).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned.  See 38 C.F.R. � 4.7 (2010).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. � 4.3.

When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v, West, 13 Vet. App. 31, 35 (1999).

When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. � 4.7 (2010).

The veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. � 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings."  See id. at 126.

The Veteran's neuralgia headaches are currently rated under Diagnostic Code 8100, which provides ratings for migraine headaches.  Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling.  Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling.  Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling.  Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling.  38 C.F.R. � 4.124a.

Analysis

The Veteran claims that his neuralgia headaches warrant a higher initial disability rating than the 10 percent currently assigned.  During a May 2011 Travel Board hearing, the Veteran's neighbor for the past five years, E.L., testified that in the past year and a half, the Veteran had increasing prostrating headache episodes occurring approximately seven to 10 days every month.  She also testified that during this time, the Veteran preferred to be lying down or sitting in a dark area for about a whole day.  Finally, she testified that his pain medication did not help him and he had taken up to three pills a day.

In a February 2009 VA examination the Veteran reported that he had been having headaches for a few years with pain starting above the right eye and going back to his head.  He described having a sharp pain from around a five to seven on a scale of zero to 10.  He reported that he had these symptoms every day and they were present all the time, although pain seemed to exacerbate.  He denied nausea, vomiting, photophobia, or phonophobia.  An examination revealed the Veteran had some problems with memory.  A motor examination revealed no upper extremity drift, strength of 4+/5 in upper extremities, and 4/5 in the lower extremities with give away type of component.  A sensory examination revealed decreased sensation in the lower extremities.  Deep tendon reflects were 1-2+ in the upper extremities and 1+ in the knees and ankle reflexes traces.  The Veteran was diagnosed with headaches.  The examiner found that the Veteran likely had neuralgia causing his symptoms and neuralgia may have been caused by either the shrapnel itself from the shrapnel wound to the head or the scar tissue.  Therefore, the examiner believed that the right sided sharp pain was caused by neuralgia and was most likely due to the gunshot injuries the Veteran had in service.

In a December 2009 VA examination, the Veteran complained of headaches, described as a sharp pain above his eyebrow.  He reported that pain was constant, sharp, and shooting.  Pain was reported to occur more at night, and bothered the Veteran more at night.  Pain was noted to be a six out of 10 on a scale of zero to 10.  The Veteran denied any nausea, vomiting, photophobia, or phonophobia.  He reported taking pain medication which helped with symptoms.  The Veteran reported pain was not interfering with activities but bothered him significantly.  A neurologic examination revealed the Veteran was alert and oriented.  On motor examination, there was no upper extremity drift and strength was 4+/5 in upper extremities, and 4/5 in the lower extremities with give away type of weakness due to pain.  A sensory examination revealed the Veteran had decreased sensation in both extremities and deep tendon reflexes were +1 in the upper extremities, knees, and ankles.  The Veteran was diagnosed with headaches.  The examiner believed the Veteran had neuralgia causing the sharp pain above his right eye.  He also stated that he did not believe the Veteran had migraine headaches, however, he was having sharp pain which was neuralgia and was most likely due to his service-connected shrapnel injures to the right eye.

Private medical records from within a year of the Veteran's claim for service connection, from November 2007, to June 2010 reflect that the Veteran had complained of and been treated for headaches, including with blackouts.  In an April 2010 letter, the Veteran's private physician, Dr. B. K., reported that the Veteran had been seen several times over the past two years for headaches that had been resistant to treatment.

After a review of the record, the Board finds that the evidence of record more nearly approximates the criteria for an initial 50 percent disability rating for the Veteran's service-connected neuralgia headaches.  The objective evidence of record reflects that the Veteran's neuralgia headaches are productive of very frequent, completely prostrating, and prolonged attacks occurring approximately seven to 10 days each month which are resistant to treatment.  In this regard, the Board notes that the objective medical evidence of record reflects that the Veteran complained of and was treated for headaches with blackouts and his private treating physician reported in April 2010 that he had been seen several times over the past two years for headaches that had been resistant to treatment.  In addition, the testimony provided from the Veteran's neighbour, E.L., reflects that she witnessed his symptoms worsening in the past year and a half and that the Veteran had increasing prostrating headache episodes, occurring approximately seven to 10 days every month, for which he had to lie down or sit in a dark area for about a whole day, and that his pain medication did not help.  Thus the evidence of record demonstrates the Veteran's neuralgia headaches are characterized by very frequent, completely prostrating, and prolonged attacks which are severe enough to resist any treatment.

Therefore, the Board finds that the neuralgia headache symptoms more nearly approximate the criteria for a 50 percent disability rating.  The Board notes that 50 percent is the maximum possible disability rating that may be assigned under Diagnostic Code 8100.  See 38 C.F.R. � 4.124a.  Accordingly, resolving all reasonable doubt in favor of the Veteran, an initial rating of 50 percent for neuralgia headaches is warranted.  See 38 U.S.C.A. � 5107; 38 C.F.R. �� 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

An initial disability rating of 50 percent for neuralgia headaches is granted, subject to the provisions governing the award of monetary benefits.

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

Department of Veterans Affairs