judge_norm: C A SKOW

text:
Citation Nr: 22005000
Decision Date: 01/31/22	Archive Date: 01/31/22

DOCKET NO. 19-34 195
DATE: January 31, 2022

REMANDED

Entitlement to service connection for a right foot disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1977 to September 1981 with subsequent service in the Reserves, to include active duty from December 1990 to July 1991, May 1993 to April 1994, October 2001 to April 2004, and from October 2004 to December 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A hearing transcript is associated with the record.

1. Entitlement to service connection for a right foot disorder is remanded.

The Veteran contends that his right foot pain is due to an incident during service in Iraq in 2003 or 2004, when a fully loaded metal pallet fell and struck his foot while being transferred from a K-loader onto the air frame.  See Hearing Transcript (September 2021); VA 21-4138 Statement In Support of Claim (December 2014).  The Veteran stated he did not seek treatment at that time because the incident occurred in a hostile environment and he did not want to delay the aircraft's departure.  See Hearing Transcript (September 2021).  He stated that over a few weeks, the foot got better and then began worsening over time.  See Hearing Transcript (September 2021).

To ensure that VA has met its duty to assist, remand is required. 38 U.S.C. � 5103A; 38 C.F.R. � 3.159(c).

First, remand is required to obtain additional medical records.  VA's duty to assist includes making reasonable efforts to obtain relevant private medical records.  38 C.F.R. � 3.159(c)(1).  Multiple entries in VA treatment records note that records have been scanned into VistA Imaging, including entries dated in October 2014, November 2014, December 2014, February 2015, October 2016, and June 2021.  See CAPRI (March 2015); CAPRI (June 2015); CAPRI (December 2021).  Unfortunately, the Board does not have access to this database.  These records must be obtained and separately associated with the claims file.

Second, remand is required to provide the Veteran with an examination.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C. � 5103A; 38 C.F.R. � 3.159.  VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C. � 5103A(d); 38 C.F.R. � 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. � 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Here, there are notations of right foot pain in the VA treatment records.  See CAPRI (December 2021); CAPRI (February 2020).  The Veteran has reported an in-service right foot injury and explained that he did not report the incident as he did not wish to delay the flight.  See Hearing Transcript (September 2021).  The Veteran's military occupational specialty (MOS) was Aircraft Loadmaster Craftsman and his personnel records are replete with references to his diligence and excellence in his MOS.  See Certificate of Release or Discharge From Active Duty (December 2014); DPRIS Response (June 2019).  The Veteran has also reported that he has had recurrent right foot pain since service discharge.  See Hearing Transcript (September 2021).  Because there is evidence of recurrent symptoms, evidence of an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required.

While on remand, the RO should attempt to verify that all available service personnel and treatment records are associated with the claims file.  Here, there are personnel records associated with the claims file, but it is unclear if all records have been obtained, as there is no history of assignments that indicates the Veteran's location after 1988.  See Military Personnel Record (March 2015); DPRIS Response (June 2019); STR  Medical (March 2015); STR  Reserve STR (June 2015); Medical Treatment Record  Government Facility (December 2014).  As the case is being remanded, attempts to verify and/or obtain additional service records should be made.

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions.  Neither the Veteran's credibility nor any lack thereof should be presumed in this remand.

The matters are REMANDED for the following action:

1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment dated after April 2021.  Obtain all records scanned into VistA Imaging, to include those dated in October 2014, November 2014, December 2014, February 2015, October 2016, and June 2021, and associate them with the claims file.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.

2. Obtain all additional service personnel and service treatment records.  If any additional records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.

3. Schedule the Veteran for a VA examination of his claimed right foot disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician.  Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with a right foot disorder.  The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).

The clinician should provide the following opinions, with supporting rationale:

(a)	Whether there is a right foot disability or right foot symptoms, e.g. pain, that causes functional impairment of earning capacity.

(b)	Whether any right foot disorder and/or symptoms of disability, e.g. pain, that causes functional impairment of earning capacity at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease.

i.	Is the Veteran's clinical history consistent his having sustained right foot injury of the type and nature as described Veteran in his lay statements and testimony? Explain.

ii.	Is any currently shown right foot disorder consistent with the type of injury reported by the Veteran as having occurred in service, to include the symptoms and activities? Explain.

iii.	Is any current shown right foot disorder more likely due to causes other than in-service foot injury reported by the Veteran. Explain.

(c)	Whether any right foot arthritis at least as likely as not (1) had its onset during active duty; (2) first manifested within one year of separation from active duty; (3) was noted during active duty with continuity of symptoms since; or (4) is otherwise related to an in-service injury, event, or disease.

NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints.

NOTE (2): If any medical history is rejected, a complete explanation is required.

NOTE (3): If another etiology is more likely the cause, please explain.

4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.

5. Readjudicate.

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.M., Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


series: legacy

judge_norm: TIFFANY DAWSON

judge_role: Veterans Law Judge

disposition: denied

condition: ptsd

benefit: tdiu

text:
Citation Nr: 22006000
Decision Date: 02/03/22	Archive Date: 02/03/22

DOCKET NO. 17-46 416
DATE: February 3, 2022

ORDER

Entitlement to a disability evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol abuse is denied.

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

FINDINGS OF FACT

1. The severity, frequency, and duration of the Veteran's PTSD symptoms do not more closely approximate total occupational and social impairment.

2. For the entire appeal period, the Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 70 percent for PTSD have not been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

2. The criteria for the award of a TDIU have not been met. 38 U.S.C. �� 1155, 5107; 38 C.F.R. � � 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1968 to April 1973.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2013 Rating Decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).

In September 2020, the Veteran provided testimony at a Board virtual hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of this hearing has been associated with the Veteran's claims file.

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, �� 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. � �� 3.102, 3.156(a), 3.159, 3.326(a).  Here, the Veteran has not raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

These issues were previously before the Board in August 2021, at which time they were remanded in order to be readjudicated in a Supplemental Statement of the Case.  The RO readjudicated the issues in a September 2021 Supplemental Statement of the Case.  Thus, the Board finds that there has been substantial compliance with its previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required).

Increased Rating Claims

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. � 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. � 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. � 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. � 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

1. Entitlement to a disability evaluation in excess of 70 percent for PTSD with alcohol abuse

The Veteran contends that his PTSD symptoms have worsened since 2012 and that he is entitled to a 100 percent disability rating.

The issue in this appeal is whether the Veteran's associated symptoms have caused the level of impairment required for a disability rating of 100 percent.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent.  Rather, the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. � 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

Under Diagnostic Code 9411, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment.

Here, the Veteran was afforded a VA PTSD examination in July 2013, at which time he was diagnosed as having depressive disorder not otherwise specified, chronic PTSD, alcohol abuse in full sustained remission, and medical diagnoses (to include TBI).  The examiner acknowledged that the Veteran had more than one diagnosed mental disorder, and indicated that the symptoms of each disorder could be delineated from each other.  Specifically, the depressive disorder was characterized by chronic depression, loss of interest, poor motivation, low energy and apathy, while the PTSD was manifested by the symptoms such as irritability, chronic sleep impairment and suspiciousness, and mild memory loss.  The Veteran's alcohol abuse appeared to be in full remission.  The Veteran reported that he retired from his job at John Deere in June 2012, and that he and his wife now cared for his mother-in-law.  Upon objective examination, the examiner attributed symptoms of anxiety, suspiciousness, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events) to the Veteran's service-connected PTSD.  The Veteran was casually yet appropriately dressed and maintained fair eye contact.  His grooming and hygiene were good.  His mood was dysthymic, with congruent affect.  His speech was generally normal for rate and tone, while his thought processes appeared grossly intact.  However, his interests and libido were reduced, while he reported significant social withdrawal.  His insight appeared good while his judgment seemed adequate.  He exhibited average intellect and denied suicidal ideation and/or homicidal ideation as well as alcohol use.  Significantly, the examiner concluded that all mental diagnoses resulted in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The examiner then specified that 50 percent of this impairment was due to PTSD while the other 50 percent was due to depressive disorder.

The Veteran testified at his September 2020 Board virtual hearing that his PTSD symptoms worsened since his retirement in 2012.  Specifically, he reported that he experienced nightmares, that he stayed in his house and was not involved in the community, and that he had a "good" relationship with his adult son but a "not too good relationship" with his adult daughter.  The Veteran additionally testified that he worked as a machining trainer for a community college, teaching approximately two classes for nine-week terms.  The Veteran also indicated that he could not work now if given the opportunity to do so because it would be too much pressure.  His wife further testified that the Veteran was "not good" with respect to maintenance of his own self and keeping himself clean and dressed, and that he was becoming forgetful.  The Veteran's representative added that "he hasn't always been truthful with everything that he is asked at his examinations."

The Veteran was again provided with a VA PTSD examination in December 2020, at which time he was diagnosed as having PTSD, alcohol use disorder in full remission, as well as mild neurocognitive disorder without behavioral disturbances.  The examiner acknowledged that the Veteran had more than one diagnosed mental disorder, and indicated that the symptoms of each disorder could be delineated from each other.  Specifically, the service-connected PTSD was characterized by reexperiencing trauma, avoidance, hyperarousal symptoms, negative alterations in mood, avoidance of crowds, elevated anxiety, and sleeping disturbances.  The nonservice-connected mild neurocognitive disorder was characterized by memory and cognitive deficits (forgetting names, appointments, and numbers) as well as questionable judgment when left alone (as reported by his wife).  The service-connected alcohol use disorder was in full remission.  The Veteran reported that he has been married to his current wife for 23 years, and that their marriage was "going well."  He also kept in touch with this two adult children and three grandchildren.  The Veteran belonged to the Military Order of the Purple Heart and attended meetings there, although he was no longer involved in church activities.  The Veteran further reported that he spent his time reading and watching the news, and that he was also taking accounting courses at the University of Northern Iowa.  The Veteran was previously retired from his position as a computerized operator at John Deere in 2012 after 12 years with the company.  He indicated that he did well at John Deere and got along with others except for upper management.  Upon objective examination of the Veteran, the examiner indicated that his PTSD was manifested by depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and obsessional rituals which interfered with routine activities.  The Veteran was alert, oriented, cooperative, and presented with adequate grooming/hygiene.  His speech was normal in rate, tone, and volume.  His mood was fair while his affect was constricted to blunted.   He presented with linear, coherent, and goal-directed thought flow without psychosis, suicidality or homicidality.  Overall, the Veteran was deemed a reliable historian but with mild deficits in memory and cognition.  Significantly, the examiner concluded that all mental diagnoses resulted in merely occupational and social impairment with reduced reliability and productivity.  The examiner then specified that 60 percent of this impairment was due to PTSD while the other 40 percent was due to mild neurocognitive disorder.  The examiner further explained that the Veteran's mild neurocognitive disorder was a new diagnosis based on June 2020 magnetic resonance imaging (MRI) which indicated mild generalized cerebral and cerebellar atrophy concurrent with chronic ischemic changes of small vessel disease.  Although the Veteran's alcohol use disorder was secondary to his PTSD, his neurocognitive disorder existed independently of his PTSD as it was related to his vascular status and obstructive sleep apnea.  Regarding occupational and functional limitations, the Veteran's most significant impairment was his cognitive/memory deficits.  His wife reported his memory worsening over the past year with the Veteran having difficulties with names, numbers, and appointments.  Otherwise, the Veteran exhibited no suicidality, homicidality, or psychotic symptoms.

A review of the Veteran's VA treatment records reveals that his Buspar (Buspirone) dosage for treatment of PTSD symptomatology was increased in August 2020.  As of October 2020, he indicated that his anxiety had "toned down," denied any concerns related to mood or anxiety, and reported only occasional nightmares which did not result in significant impairment.  As of June 2021, the Veteran denied mood or health concerns and reported that he felt largely recovered from a previous cerebrovascular accident, resulting in improved balance and cognition, without any falls or forgetfulness.

After a review of the evidence of record, the Board finds that the Veteran's PTSD was manifested, at worst, by symptoms associated with a 70 percent rating such as depression and the inability to establish and maintain effective relationships that cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Symptoms associated with a 100 percent rating such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name have not been reported or assessed.  Indeed, although the Veteran was noted to have some cognitive/memory deficits, the VA examiner indicated that these were related to a neurocognitive disorder associated with mild generalized cerebral and cerebellar atrophy rather than his service-connected PTSD.  Additionally, the Veteran's symptoms do not suggest that he has total social impairment.  Rather, the Veteran reported that his marriage of 23 years was "going well" and indicated a good relationship with his adult son. The Veteran also reported taking accounting courses at the University of Northern Iowa and participating in activities outside of the home, to include meetings at the Military Order of the Purple Heart.  Although the Veteran's January 2022 Informal Hearing Presentation argued that he experienced slowed complex problem solving, memory deficits, and attention deficits, and that he neglected personal hygiene during manic/depressive episodes, these symptoms do not equate to total occupational and/or social impairment.

The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating.

In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's PTSD symptoms resulted in the level of impairment required for a 100 percent rating.  The criteria for a 100 percent disability rating have not been met and the appeal must be denied.

2. Entitlement to a TDIU

The Veteran also asserted at his September 2020 virtual Board hearing that he was unable to work on a full- or part-time basis due to symptoms related to his service-connected PTSD and diabetes mellitus.  Specifically, the now 74-year-old Veteran asserted that he was forced to retire from work in 2012 (at the age of 65) or otherwise be involuntarily terminated due to disciplinary issues and adversarial relations with his coworkers.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. � 4.16(a).  For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability.  Id.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Id.  Factors such as employment history, as well as educational and vocational attainments, are for consideration.  Id.  For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).  The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

In 2019, the Court held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; the economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019).  The Court also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities.

Here, the Veteran's service-connected disabilities include PTSD with alcohol abuse (rated as 70 percent disabling); diabetes mellitus, type II (rated as 20 percent disabling); and scars, residuals of gunshot wound to abdomen with surgical repair of lacerated liver (rated as noncompensable).  His combined evaluation for compensation has been 70 percent since October 21, 2009.  Therefore, the threshold criteria for consideration of a TDIU have been met throughout the period on appeal.  See 38 C.F.R. � 4.16(a).

As the threshold criteria for consideration of a TDIU have been met, the Board will assess whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  C.F.R. � 4.16(a).

The Board notes that the determination of entitlement to a TDIU is not a medical issue, but a determination to be made as the adjudicative authority.

Here, on his September 2017 VA Form 9, the Veteran indicated that his service-connected disabilities caused great employment barriers, and that his PTSD was the biggest problem due to trouble with crowds, authority, and "a number of other barriers" related to his time in service.

A July 2013 VA medical opinion concluded that there was no clinical evidence that the Veteran's service-connected diabetes mellitus was of sufficient severity to render it impossible for him to follow substantially gainful employment.  In support of this conclusion, the physician explained that the Veteran presented without clinical symptoms, and that he had no established or imminent complications of diabetes.

Additionally, as discussed above, the Veteran's July 2013 VA PTSD examiner concluded that all mental diagnoses resulted in merely occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.  The examiner then specified that 50 percent of this impairment was due to PTSD while the other 50 percent was due to depressive disorder.  Significantly, total occupational impairment was not found.

The Veteran testified at his September 2020 Board virtual hearing that his PTSD symptoms worsened since his retirement in 2012.  Specifically, he reported that he experienced nightmares, that he stayed in his house, and that he was not involved in the community.  However, the Veteran also testified that he worked as a machining trainer for a community college, teaching approximately two classes for nine-week terms.  The Veteran indicated that he could not work now if given the opportunity to do so because it would be too much pressure.  His wife further testified that the Veteran was "not good" with respect to maintenance of his own self and keeping himself clean and dressed, and that he was becoming forgetful.

The Veteran also submitted a VA Form 21-8940, Veteran's Application for Compensation Based on Unemployability, in September 2019, at which time he indicated that his service-connected PTSD and diabetes mellitus prevented him from securing or following a substantially gainful occupation.  He indicated that he last worked fulltime as a machine operator in June 2012 for John Deere.  The Veteran had completed two years of college.  He indicated that he left his last job due to disability, that he had not attempted to obtain employment since June 2012, and that he received no additional education or training since he became too disabled to work.  The Veteran indicated that he was informed by his former employer in June 2012 to either retire or be involuntarily terminated due to disciplinary issues and adversarial relations with his supervisors and coworkers.

The Veteran was also provided with a VA Diabetes Mellitus examination in December 2020, at which time he was diagnosed as having diabetes mellitus, type II.  The examiner opined that the Veteran's diabetes mellitus impacted his ability to work in that he may need waiver for some Department of Transportation and Federal Aviation Administration certifications.

Additionally, as discussed above, the Veteran's December 2020 VA PTSD examiner concluded that all mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity.  The examiner then specified that 60 percent of this impairment was due to PTSD (which was service connected) while the other 40 percent was due to mild neurocognitive disorder (which was not service connected and not related to PTSD).  Significantly, total occupational impairment was not found.

In January 2021, the John Deere company submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, on the Veteran's behalf.  Significantly, John Deere indicated that the Veteran last worked on June 30, 2012, and was no longer employed with them because he retired as of July 1, 2012.  Additionally, John Deere indicated that the Veteran received a defined benefit pension administered by the John Deere Benefits Center in the amount of $490.75 per month for the Veteran's lifetime.

A review of the Veteran's VA treatment records reveals that his Buspar (Buspirone) dosage for treatment of PTSD symptomatology was increased in August 2020.  As of October 2020, he indicated that his anxiety had "toned down," denied any concerns related to mood or anxiety, and reported only occasional nightmares which did not result in significant impairment.  As of June 2021, the Veteran denied mood or health concerns and reported that he felt largely recovered from a previous cerebrovascular accident, resulting in improved balance and cognition, without any falls or forgetfulness.

The Board finds that the preponderance of the evidence does not support a finding that Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his  education and occupational experience.  See 38 C.F.R. �� 3.340, 3.341, 4.16.  The Board notes that the determination of entitlement to TDIU is not a medical issue, but a determination to be made as the adjudicative authority.

At the outset, the Board notes various discrepancies in the information provided to VA by the Veteran.  For instance, on his September 2020 VA Form 21-8940, he indicated that he was last employed by John Deere in 2012; however, elsewhere the Veteran reported that after 2012 he had worked as a machining trainer for a community college, teaching approximately two classes for nine-week terms.  Additionally, on his September 2020 VA Form 21-8940, the Veteran indicated that he did not receive any education or training since he became too disabled to work; however, at his December 2020 VA PTSD examination, he reported taking accounting courses at the University of Northern Iowa.  His September 2020 VA Form 21-8940 also indicated that he had no earned income over the prior 12 months; however, his former employer John Deere indicated that the Veteran received a defined benefit pension in the amount of $490.75 per month for the Veteran's lifetime.  See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (holding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a claimant); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that while the Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of evidence).

Furthermore, the Veteran and his spouse testified as to psychiatric symptoms at the time of his September 2020 Board virtual hearing that were more severe than the symptoms described by the Veteran in his contemporaneous VA treatment records dated from October 2020 to January 2021.  During the Board hearing, the Veteran's representative added that "he hasn't always been truthful with everything that he is asked at his examinations."  However, the Board finds that the Veteran's subjective reports as documented in his VA treatment records are highly probative, as he made these statements while seeking medical treatment, which statements tend to be exceptionally trustworthy. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  As such, the Board affords these statements greater probative weight than the testimony offered by the Veteran at his Board hearing concerning his level of occupational impairment.

While the Veteran has exhibited depressed mood; anxiety; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances during the period on appeal, examiners have indicated that his service-connected symptomatology resulted in no more than occupational and social impairment with reduced reliability and productivity.   Significantly, the December 2020 VA examiner opined that the Veteran's most significant impairment regarding occupational and functional limitations was his cognitive/memory deficits, which were unrelated to his PTSD which is not service connected.  Despite the Veteran's efforts to portray the end of his employment at John Deere in 2012 as a situation in which he was pressured to either retire or face involuntary termination due to PTSD symptoms, the evidence provided by John Deere suggested only a voluntary retirement at the age of 65.

Based on a preponderance of the evidence, the impacts of the Veteran's service-connected disabilities are only impairments to his ability to function, for which the rating disabilities assigned to him already provide compensation.  There is no credible evidence of unemployability due to service-connected symptomatology.  Despite the Veteran's assertions to the contrary, the record reflects that he had the capacity to work as a machining trainer for a community college, teaching approximately two classes for nine-week terms, and to take accounting courses at the University of Northern Iowa, earning at least 103 credit hours.  Additionally, service-connected symptomatology reported by the Veteran during the course of VA medical treatment from October 2020 to January 2021 did not suggest symptoms so severe that they prevented employment; to the contrary, he reported that his anxiety had "toned down," denied any concerns related to mood or anxiety, and reported only occasional nightmares which did not result in significant impairment.

In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

The claim for entitlement to a TDIU is denied.

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Anthony M. Flamini

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: K PARAKKAL

condition: radiculopathy

text:
Citation Nr: 22007000
Decision Date: 02/08/22	Archive Date: 02/08/22

DOCKET NO. 11-19 725
DATE: February 8, 2022

ORDER

Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied.

Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied.

FINDING OF FACT

The Veteran's current peripheral neuropathy of the bilateral lower and upper extremities did not have its onset in service or within one year of service separation, is not otherwise related to an in-service injury or disease, and is not caused or aggravated by service-connected disability.

CONCLUSION OF LAW

The criteria for service connection for peripheral neuropathy of the bilateral lower and upper extremities, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. �� 1110, 5107; 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1988 to November 1992.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board in August 2018 and February 2021.

Most recently, in July 2021, the claims were remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ continued to deny the Veteran's claims (as reflected in a November 2021 supplemental statement of the case (SSOC)).

Entitlement to service connection for peripheral neuropathy

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

The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. � 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Service treatment records (STRs) dated in December 1991 document that the Veteran reported tingling/numbness in his legs after a fall from a truck. STRs dated that month note radiculitis in both legs. However, a January 1992 STR reported no radicular symptoms. A September 1992 EMG report noted the Veteran had "mild motor root limitation L5."

Post-service private treatment records dated in August 2003 and May 2004 indicate that the Veteran complained of leg numbness and weakness. June 2008 private treatment records noted the Veteran's history of foot weakness and bilateral leg paresthesias, and noted a diagnosis of neuropathy.

In the July 2021 remand, the Board noted that the prior VA medical opinions of record were not adequate, and remanded for new VA medical opinion. VA medical opinion was obtained in November 2021. Regarding direct service connection, the examiner opined that the Veteran's peripheral neuropathy of the bilateral lower and upper extremities were less likely than not related to his active service. As rationale, the examiner indicated that he reviewed the Board's remand directives, as well as the relevant medical evidence. He stated that although the STRs documented tingling, numbness, radiculitis, and mild motor root limitation L5, these symptoms resolved during service. The examiner noted that the September 1992 separation examination reported no neurological symptoms (even though it did note low back pain from falling off a truck) and that there were no complaints of symptoms related to his condition at service discharge.

Regarding secondary service connection, the examiner opined that it was less likely than not that the Veteran's peripheral neuropathy was caused or aggravated by his service-connected low back and/or right knee disabilities. As rationale, he noted that that the Veteran was "extensively evaluated by three different neurologists" and was diagnosed with hereditary motor sensory neuropathy (HMSN) around 2009. He stated that "HMSN is an inherited progressive disease of the nerves with weakness and numbness more pronounced in the legs than the arms. As parts of the nerve cells deteriorate the muscles in the hands and feet get weak because they no longer receive normal impulses from the nerves." Therefore, the examiner concluded that "HMSN is not cause[d] by a lumbar spine or right knee condition." In addition, the examiner noted that peripheral neuropathy is a "separate entity entirely from the service connected low back or right knee condition" and that "there is no medical pathophysiologic relationship between the two conditions since they are anatomically and physiological different systems."

The Board finds that the examiner's opinion is probative, because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The November 2021 VA examiner's opinion read as a whole shows that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is in no way medically related to either a low back or right knee condition. Thus, he discounted any causal effect from the Veteran's peripheral neuropathy to service-connected low back or right knee disabilities. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read and in the context of the evidence of record). Additionally, the examiner's comments are broad enough to foreclose the possibility of aggravation.

To the extent the Veteran asserts a nexus, this issue is a complex medical question since it involves the cause of an internal disease with multiple possible causal factors. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons are not competent to address complex medical matters). Since the Veteran is not competent to report a nexus, any such nexus reports from him have no probative value. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).

The Veteran has not identified any other competent evidence to warrant further investigation of a nexus, either on a direct or secondary basis. Given that the preponderance of the evidence is unfavorable to the claim, VA's benefit-of-the-doubt doctrine is not for application. 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102. Accordingly, the Board finds the preponderance of the evidence is against the service connection claims for peripheral neuropathy of the bilateral lower and upper extremities, and they must be denied.

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kovacs, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: G A WASIK

disposition: remanded

condition: back

condition: knee

text:
Citation Nr: 22008000
Decision Date: 02/11/22	Archive Date: 02/11/22

DOCKET NO. 17-33 687
DATE: February 11, 2022

REMANDED

Entitlement to service connection for a lower back disorder is remanded.

Entitlement to service connection for a left knee disorder is remanded.

Entitlement to service connection for a right knee disorder is remanded.

REASONS FOR REMAND

The Veteran served on active duty from February 2009 to February 2014.

The case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 2015.

The Board remanded this matter in February 2020.

In May 2021, the Court of Appeals for Veterans Claims (the Court or CAVC) granted a joint motion for remand (JMR), pursuant to which the Court vacated the Board's February 2020 denial of service connection for the claimed disabilities of the lower back, left knee, and right knee and remanded the claims for readjudication consistent with the Court's order.  Under the JMR, the parties agreed that vacatur and remand were required, because the Board failed to address whether VA satisfied its duty to assist concerning relevant private treatment records, and whether an October 2015 VA examiner's opinion concerning the Veteran's bilateral knee disorder was adequate.  A remand by the CAVC requires a critical examination of the justification for the Board's decision and not merely superficial compliance with the requirement, under 38 U.S.C. � 7104(d)(1), that all Board decisions include the reasons and bases for the findings and conclusions.  See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991).

1. Entitlement to service connection for a lower back disorder.

The Veteran's August 2015 service-connection claim for "lower back injury" was denied by a rating decision of November 2015.  The scope of the claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The Veteran filed a notice of disagreement (NOD) in October 2016 and VA Form 9 in June 2017.

The Veteran's service treatment records (STRs) show that he reported having low back pain in June 2011.  A lumbar spine x-ray was normal, and he was diagnosed with an acute sprain.  At his December 2013 separation physical, he had a normal examination of his spine and lower extremities.  He reported having back pain.  A private treatment record of October 2014, dated less than one year following separation from service in February 2014, notes the Veteran's report of low back pain.

In October 2015, the Veteran underwent a VA examination for the back (thoracolumbar spine).  Spondylolisthesis was diagnosed.  The Veteran reported having had lower back pain since injuring his back during service in 2011.  In the examiner's opinion, the Veteran current back disorder was less likely than not incurred in, or caused by, an in-service injury, illness, or event.  The entire rationale was stated as: "During service, condition was acute only.  There is no evidence of chronicity of care.  A nexus has not been established."

The October 2015 VA examination report is inadequate.  The examiner needed to explain why the in-service back injury should be characterized as "acute" despite the fact that the Veteran competently reported having back pain in December 2013, over two years following the diagnosis of an acute sprain in June 2011.  In addition, the examiner's rationale appears to have wrongly required that service connection be based on a finding of chronicity of care.  A claimed disorder may be service-connected if it was at least as likely as not incurred during active duty service, regardless of whether the disorder is listed as a "chronic" disease that is subject to a presumption of service connection.  Service connection for a listed "presumptive" disease may be established upon adequate evidence of actual causation.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994).  Moreover, it has been held that symptoms, not treatment, are the essence of evidence of continuity of symptomatology.  See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

Furthermore, while the examination report notes the Veteran's report that he first experienced low back symptoms during service, the rationale for the negative nexus opinion does not indicate that such competent evidence was considered.  An adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder.  See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020).  Finally, in reasoning that a nexus between the current disorder and service had not been "established," the examiner appears to have improperly applied an evidentiary standard that is stricter than the "at least as likely as not" standard that was requested and that the examiner purported to apply.  A VA examination and medical opinion must be adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because the nexus opinion of the October 2015 VA examiner is not adequate, the Board will remand for a new examination and nexus opinion.  38 C.F.R. � 19.9(a).

A remand is also required in order for the agency of original jurisdiction (AOJ) to satisfy VA's duty to assist concerning private treatment records related to the claimed lumbar spine disorder, consistent with the JMR granted by CAVC in May 2021.

2. Entitlement to service connection for a left knee disorder.

3. Entitlement to service connection for a right knee disorder.

In August 2015, the Veteran filed a service-connection claim for tendonitis of both knees.  The scope of the claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  A rating decision of November 2015 denied service connection for chronic tendonitis of the left knee and right knee. The Veteran filed a NOD in October 2016 and VA Form 9 in June 2017.

In October 2015, the Veteran underwent a VA examination for knee and lower leg conditions.  Patellofemoral pain syndrome of both knees was diagnosed.  The Veteran reported that his knee symptoms started gradually in bootcamp during service.  In the examiner's opinion, the Veteran's current bilateral knee disorder was less likely than not incurred in, or caused by, an in-service injury, illness, or event.  The rationale consisted entirely of the following statements: "During service, condition was acute only.  There is no evidence of chronicity of care.  A nexus has not been established."

The October 2015 VA examination report is not adequate.  The scope of the nexus opinion is unclear because the examiner, while diagnosing only patellofemoral pain syndrome, arguably limited his opinion to whether chronic tendonitis of both knees was at least as likely as not incurred during service.  A medical opinion is needed in relation to the currently diagnosed condition, patellofemoral pain syndrome, as pointed out in the JMR granted by CAVC in May 2021.

A remand is also required in order for the AOJ to satisfy VA's duty to assist concerning private treatment records related to the claimed bilateral knee disorder, consistent with the JMR granted by CAVC in May 2021.

The matters are REMANDED for the following action:

1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture.

2. Undertake appropriate development, including any appropriate follow- up requests, to associate with the record any outstanding and identified private medical records that are pertinent to the three remanded issues and any outstanding VA treatment records.  All efforts to obtain such records must be documented in the electronic claims folder.

Such development must specifically include an attempt to obtain all records relating to the Veteran's back and knees from Des Moines Orthopedic Surgeons, P.C.

If VA receives information showing that subsequent requests made to an initial source or another custodian could result in obtaining the records sought, reasonable efforts must include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.

3. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any back disorder, to include spondylolisthesis, and to include any associated neuropathy, at any time since the Veteran's claim was filed in August 2015, even if now resolved.  The examiner must opine as to whether any such back disorder at least as likely as not:

a.	Is caused by an in-service injury, disease, or event, to include the Veteran's reporting as to the onset and history of his experienced back symptoms, as indicated by his statements in the claims file and by statements made upon current examination;

b.	Had its inception during service;

c.	Falls within the definition of arthritis;

d.	Manifested during active service or within one year after discharge from service;

e.	Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service or the year following service; or

f.	Is proximately due to, or aggravated beyond its natural progression by a service- connected disability or by any other disorder.

If the Veteran's medical history indicates that the diagnosis of any back disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

Notify the examiner that a claimed disorder may be service-connected if it was at least as likely as not incurred during active duty service, regardless of whether the disorder is listed as a "chronic" disease that is subject to a presumption of service connection.

Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that he or she is not being asked whether a connection between a current back disorder and a disease or injury of service is "established," but rather whether such a connection is at least as likely as not.

Notify the examiner that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

4. Schedule the Veteran for a medical examination with an appropriate clinician to determine the nature and etiology of any disorder of the left knee and/or right knee, to include tendonitis and patellofemoral pain syndrome, at any time since the Veteran's claim was filed in August 2015, even if now resolved.  The examiner must opine as to whether any such knee disorder at least as likely as not:

a.	Is caused by an in-service injury, disease, or event, to include the Veteran's reporting as to the onset and history of his experienced knee symptoms, as indicated by his statements in the claims file and by statements made upon current examination;

b.	Had its inception during service;

c.	Falls within the definition of arthritis;

d.	Manifested during active service or within one year after discharge from service;

e.	Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service or the year following service; or

f.	Is proximately due to, or aggravated beyond its natural progression by a service- connected disability or by any other disorder.

If the Veteran's medical history indicates that the diagnosis of any knee disorder has changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder.

Notify the examiner that a claimed disorder may be service-connected if it was at least as likely as not incurred during active duty service, regardless of whether the disorder is listed as a "chronic" disease that is subject to a presumption of service connection.

Notify the examiner that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

Notify the examiner that he or she is not being asked whether a connection between a current knee disorder and a disease or injury of service is "established," but rather whether such a connection is at least as likely as not.

Notify the examiner that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms.

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

A rationale is required for all opinions in the report.

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Steven D. Najarian, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.


judge_norm: B T KNOPE

disposition: granted

condition: psychiatric

text:
Citation Nr: 22009000
Decision Date: 02/16/22	Archive Date: 02/16/22

DOCKET NO. 18-50 151A
DATE: February 16, 2022

ORDER

Entitlement to service connection for a sleep disorder, characterized as insomnia, to include as secondary to his already service-connected acquired psychiatric disorder, is granted.

Entitlement to service connection for a bilateral foot disorder is denied.

REMANDED

Entitlement to service connection for a back disorder is remanded.

FINDINGS OF FACT

1. It is at least as likely as not that the Veteran's insomnia is related to his service-connected acquired psychiatric disorder.

2. The Veteran's bilateral foot disorder was not shown in service or for many years thereafter and is not related to service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a sleep disorder, claimed as insomnia, have been met.  38 U.S.C. �� 1110, 1131, 5103(a), 5103A; 38 C.F.R. �� 3.159, 3.303, 3.304, 3.306.

2. The criteria for entitlement to service connection for a bilateral foot disorder have not been met.  38 U.S.C. �� 1110, 1131, 5103(a), 5103A; 38 C.F.R. �� 3.159, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1970 to November 1971.

The Veteran underwent a virtual hearing in September 2021 before the undersigned Veteran's Law Judge. A transcript of the hearing is of record.

Service Connection

Specifically, 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. �� 1110, 1131.  Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. � 3.310.  Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  Id.

1. Entitlement to service connection for sleep apnea

The Veteran asserts that his sleep apnea is secondary to his service connected acquired psychiatric disorder.  The Board determines that this disorder is warranted for this disorder.

Specifically, the evidence of record includes credible statements made by the Veteran indicating that the medications he takes for his service-connected hypertension, as well as his psychiatric symptoms, have caused him difficulty in sleeping.  As insomnia is a factor in the Veteran's current 50 percent rating for his psychiatric symptoms, there is sufficient evidence to conclude that this is an expected consequence of his service-connected disabilities.  38 C.F.R. � 4.130.  As such, service connection for sleep apnea should be granted.

However, as the Veteran is already service-connected for an acquired psychiatric disorder, it is very unlikely that this would result in any change in the Veteran's benefits. Cf. Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009).

2. Entitlement to service connection for a bilateral foot disorder

The Veteran asserts that his bilateral foot disorder or pain is related to active-duty service.  Upon review of all evidence or record, the Board finds that the claim for entitlement to service connection for a bilateral foot disorder is not warranted.

The Veteran's service treatment records do not show complaints, treatment or symptoms related to bilateral foot pain or a diagnosis.  Furthermore, his October 1971 separation examination mentions no issues with his feet.

The post service medical evidence does not reveal that the Veteran had symptomology related to his feet until approximately 2015, and approximately 44 years after he left active duty.  As such, a continuity of symptoms is not shown on a clinical basis.

As part of this claim, the Board recognizes the statements from the Veteran regarding his history of feet symptoms since service.  In this regard, while the Veteran is not competent to make a diagnosis related to this disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.  Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish continuity of symptomatology.  Significantly, in addition to the fact that 44 years elapsed between the time he left the military and his first diagnosis, the Board also notes that the Veteran submitted a claim for VA benefits in 1972 and 2010, but did not mention these issues currently on appeal.  The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation and other benefits, but made no reference to the disorder he now claims is inconsistent with him having these symptoms since service.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring).

Next, service connection may also be granted when the evidence establishes a medical nexus between active-duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty.

In a March 2021 VA examination, the examiner performed a thorough physical examination and detailed review of the Veteran's medical and service treatment records and found that the Veteran did not have a current foot diagnosis.  However, the Board does acknowledge that the Veteran has experienced bilateral foot pain per his medical treatment records, but this pain appears to be due to his diabetes mellitus.  As such, a medical nexus has not been established.  Additionally, the Veteran has not provided any private medical nexus letters on his behalf.

In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his disorder to his active service.  The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his bilateral foot disorder.  See Jandreau, 492 F.3d at 1377, n.4.  Because this condition is not diagnosed by unique and readily identifiable features, as it does not involve a simple identification that a layperson is competent to make.  Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran's disorder are found to lack competency.

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved.  38 U.S.C. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Therefore, the appeal is denied.

REASONS FOR REMAND

1. Entitlement to service connection for a back disorder is remanded.

The Veteran asserts that his back disorder is related to active-duty service.  Therefore, given that the Veteran has a currently diagnosed back disorder, a VA examination is warranted based upon the evidence of record.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

1. Obtain any and all treatment records from any VA facility from which the Veteran has received treatment.

If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his back disorder.  The examiner must opine whether it is at least as likely as not that this disorder is related to an in-service injury, event, or disease, including as a result of a service-connected disability.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Billinger, Associate Counsel


judge_norm: SAUDIEE BROWN

judge_role: Acting Veterans Law Judge

benefit: smc

text:
Citation Nr: 22010000
Decision Date: 02/22/22	Archive Date: 02/22/22

DOCKET NO. 13-30 295
DATE: February 22, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) for the period, prior to December 3, 2020, is denied.

REMANDED

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or on account of being housebound due to service-connected disabilities is remanded.

FINDING OF FACT

Prior to December 3, 2020, the Veteran met the schedular criteria for TDIU.  However, there is a reasonable doubt as to whether his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment.

CONCLUSION OF LAW

Prior to December 3, 2020, the criteria for TDIU have not been met.  38 U.S.C. � 1155; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the Marine Corps from October 1974 to December 1975.

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

The matters were remanded in May 2021 for further development.  They have since been returned to the Board for appellate review.

Law and Analysis

The Veteran and his representative have not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

TDIU

All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled.  For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. �� 3.340, 4.16(b).

A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. � 4.16(a).  Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. � 4.16(b).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment.  See 38 C.F.R. �� 3.340, 3.341, 4.16.  The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992).

Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. �� 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  See Van Hoose, 4 Vet. App. at 363.

Prior to December 3, 2020

In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to TDIU prior to December 3, 2020.

Prior to December 3, 2020, the Veteran was service-connected for major depressive disorder (70 percent disabling), migraine headaches (50 percenter disabling), and erectile dysfunction (noncompensable).  His combined evaluation was 90 percent; thus, he met the schedular criteria.

Nevertheless, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to December 3, 2020.

In his December 2020 VA Form 21-8940, the Veteran reported that he was last employed on April 19, 2017.  However, the evidence of record suggests otherwise.

To clear up the matter, the record shows that the AOJ attempted to obtain information from the Veteran for his claim, including his employment history, but he did not provide the requested information.  See October 2021 letter (request for completed TDIU application (VA Form 21-8940)).  The Court has held that "[t]he duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The evidence shows that the Veteran was working during the time prior to December 3, 2020.  During an August 2017 VA examination, he reported that he worked part-time.  See August 2017 migraines VA examination report.  Moreover, during an August 2017 psychiatric VA examination, the examiner noted the Veteran worked part-time as a driver and maintenance worker for a preschool.  At that time, he reported he worked 7:00 to 9:00, and 12:00 to 4:00, Monday through Friday.  He indicated that his supervisors were supportive and flexible with his schedule when he needed to attend medical appointments.  Further, during a November 2017 medical appointment, the Veteran indicated that, while he missed work due to his headaches, he was employed.  A December 2017 VA treatment record reflects that, despite missing time from work due to his headaches, he was employed but was considering retirement because of his health conditions and absence from work.  Lastly, an October 2019 VA treatment record show the Veteran was still employed.

Although undoubtedly the Veteran may have had some occupational impairment resulting from service-connected disabilities prior to December 3, 2020, the evidence does not show that he was unemployable as a result of them.  The record does not indicate that the Veteran's service-connected disabilities are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment, prior to December 3, 2020.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Thus, the Board finds that the weight of the evidence is against the Veteran's claim.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.

REASONS FOR REMAND

Upon review of the claims file, the Board finds that remand is necessary once again for the claim of entitlement to a special monthly compensation due to a need for aid and attendance.

During a January 2021 VA examination, the examiner indicated the Veteran has difficulty concentrating on daily tasks due to forgetfulness associated with his service-connected psychiatric disorder.  This included the Veteran forgetting to take his medication, so his daughter prepares his daily medication in a pill organizer.  Additionally, she manages and handles his financial affairs.

During a September 2018 private examination for housebound status, the physician noted the Veteran was not able to prepare his own meals because of, among other limitations, his service-connected PTSD and forgetfulness associated with the condition.  It was also indicated that he needed medication management, was not able to manage his own financial affairs, and needed assistance coming to his medical appointments.

Given these facts, remand is necessary to obtain a VA examination and opinion to ascertain whether the Veteran meets the requirements for special monthly compensation based on the need for regular aid and attendance or by reason of being housebound.

The matters are REMANDED for the following actions:

1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's service-connected disabilities.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

The AOJ should also obtain any outstanding VA medical records.

2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity of his service-connected disabilities and to determine if he meets the requirement for aid and attendance.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file.

After review of the file and examination(s), the examiner should specifically address the following:

(a) The current symptomatology associated with the Veteran's various service-connected disabilities and the severity of those symptoms;

(b) Whether the Veteran is so helpless or so nearly helpless as to require the regular aid and attendance of another person due to his service-connected disabilities. In making this determination, the examiner should specifically comment on whether the Veteran is unable to dress or undress himself, or to keep himself ordinarily clean and presentable; requires the frequent adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; is unable to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; is unable to attend to the wants of nature; or has an incapacity, physical or mental, that requires care of assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment; or is bedridden.

(c) For housebound purposes, the examiner should address whether the Veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime.

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

Saudiee Brown

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.M. Walker

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. � 20.1303.