judge_norm: MARK F HALSEY

text:
Citation Nr: 1511000
Decision Date: 03/16/15    Archive Date: 03/27/15

DOCKET NO.  04-44 559	)	DATE
	)
	)

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

THE ISSUES

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

2.  Entitlement to a total disability rating based on individual unemployability by reason of service-connected disability (TDIU).

REPRESENTATION

Appellant represented by:	Wade R. Bosley, Attorney at Law

WITNESSES AT HEARINGS ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel

INTRODUCTION

The Veteran had honorable active military service from April 1966 to July 1969.  He also had a period of service from July 9, 1969 to May 1971 that has been characterized as under other than honorable conditions.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2003 and April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  Jurisdiction of the Veteran's claims folders currently resides with the RO in Portland, Oregon.

In November 2005, the Veteran and his spouse testified before a Decision Review Officer at the RO.  In February 2007, the Veteran and his spouse testified before the undersigned Veterans Law Judge during a videoconference hearing.

By way of history, the Board denied the Veteran's claims in a decision dated in June 2007.  The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2008, VA's General Counsel and the Veteran's attorney before the Court filed a joint motion to vacate the June 2007 Board decision.  By an order dated in May 2008, the Court granted the joint motion, vacated the Board's June 2007 decision, and remanded the matter to the Board for readjudication.  In January 2010, the Board remanded the Veteran's claims to the RO for additional evidentiary development.

The Board also notes that in September 2011, the RO granted service connection and assigned 60 percent and 100 percent disability ratings for myocardial infarction to include coronary artery disease (CAD), as secondary to herbicide exposure.  The 60 percent award was effective December 10, 1996 and the 100 percent award effective April 1, 2011.

In a subsequent May 2012 supplemental statement of the case (SSOC), the RO continued to deny the Veteran's claim for a rating higher than 50 percent for PTSD and also denied the Veteran's claim for TDIU prior to April 1, 2011.  (The Board notes that the then-assigned schedular rating of 100 percent effective April 1, 2011, made moot the issue of a TDIU from April 1, 2011.)

The Board again remanded the Veteran's claims in October 2012.  During the pendency of the remand, it was found that the Veteran did not have ischemic heart disease.  In October 2014, following notice to the Veteran of the proposed reduction, the RO reduced the Veteran's service-connected heart disorder rating from 100 percent to noncompensable (0 percent) effective January 1, 2015.

Subsequently, in December 2014, the RO issued an SSOC continuing the denial of the Veteran's claims on appeal for a higher rating for PTSD and for a TDIU.

FINDINGS OF FACT

1.  The Veteran's service-connected PTSD more nearly approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous depression; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.

2.  There is reasonable doubt as to whether the Veteran's service-connected PTSD precludes substantially gainful employment.

CONCLUSIONS OF LAW

1.  The criteria for a rating to 70 percent for service-connected PTSD have been met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. �� 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2014).

2.  The criteria for an award of a TDIU have been met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. �� 3.340, 3.341, 4.15, 4.16 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2014).

The Board finds that all notification and development action needed to arrive at a decision on the claims on appeal has been accomplished.

Through notice letters, dated in August 2004 and January 2005, the RO notified the Veteran of the legal criteria governing his claims and the evidence needed to substantiate the claims.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims and has been afforded ample opportunity to submit such information and evidence.  The Board also finds that the above notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  It requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence.  In March 2006, the Veteran was provided notice regarding the assignment of disability rating elements and effective dates.

With respect to complete notice not necessarily provided until after the RO initially adjudicated the Veteran's claim for a higher rating for PTSD, such claim was properly re-adjudicated.  See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006).  Consequently, the Board does not find that the late notice requires remand to the RO.  Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (all VA notice errors are not presumptively prejudicial, and any error must be examined in the context of the facts of a particular case).

Regarding VA's duty to assist, the RO has obtained the Veteran's service treatment records (STRs), VA and private medical records, as well as the Veteran's Social Security Administration (SSA) records.  Furthermore, the Veteran has submitted medical opinion evidence in support of his claims and VA examinations have been conducted, the most recent being in April 2012.  The Board is cognizant that it has been almost three years since the Veteran's most recent VA C&P examination.  Although evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. � 5103A(d)(2).  In the present case, the evidence, in particular the Veteran's VA outpatient treatment records, reflect continued treatment for psychiatric symptoms similar to those identified during the April 2012 VA examination.  Therefore, the Board finds the record before it sufficient to adequately consider the Veteran's claims on appeal.  As such, the Board cannot conclude that its duty to assist in this instance requires an additional medical examination.

II.  Analysis

Higher Rating for PTSD

The Veteran was service connected for PTSD in 1995.  The assigned rating was increased from 10 percent to 30 percent by a rating decision dated in March 2001.  Correspondence received in January 2003 was construed by the RO to be a claim for an increased rating.  By a decision dated in December 2004, the rating was increased to 50 percent effective January 30, 2003.

The Board has conducted a review of the Veteran's claims folders, to include the medical evidence associated with his claim.  When the Veteran was granted service connection for PTSD in June 1995, it appears the basis of the grant was a medical diagnosis for the psychiatric disorder per inpatient VA hospital treatment records plus the Veteran's receipt of the Combat Action Ribbon.  The Veteran is identified as having served in the Republic of Vietnam with the United States Marine Corps.

In a subsequent June 2000 VA examination, the VA examiner commented that the Veteran had not worked since 1994 and that there were several reasons for this to include residual PTSD as well as physical disabilities.  He further noted that the Veteran had a history of antisocial behaviors and problems with authority figures and it was difficult to distinguish how much of the Veteran's aggressive behavior was related to his PTSD.  The examiner noted the Veteran's report of experiencing combat and being wounded in combat.  (Parenthetically, the Board notes that the Veteran's personnel records do not reflect him receiving a Purple Heart as a result of combat service in Vietnam nor is there any other evidence demonstrating that the Veteran was wounded in combat.)  The examiner's diagnosis included PTSD and also personality disorder.  The Veteran's Global Assessment of Functioning (GAF) related to his PTSD was reported as being 55.

The Veteran was again afforded a VA PTSD examination in September 2004.  He reported to the examiner that he had been having more flashbacks over the last several months, that they were intrusive, and that they precipitated anger in him.  The Veteran reported that he had worked in construction since leaving service, even owning his own company for three years.  He also reported that he had trouble working for other people because he did not like being told what to do.  The examiner noted that the Veteran had not worked at all since 1996.  The Veteran reported having been married five times and that his current marriage had been for more than 13 years.  He reported that alcohol abuse had been a problem in all of the marriages because of anger associated with his abuse.  It was also reported that the Veteran had abstained from alcohol use since 1998/1999.  Otherwise, at the time of the examination the Veteran was reported as having one friend whom he saw every few days, but he had little contact with other people and was not involved with any organizations.  There was a report of suicidal ideation in the past without attempt and a denial of homicidal ideation, except for one police officer who allegedly had beaten him up.

Evaluation of the Veteran during the September 2004 examination identified him as being well-groomed, cooperative, and pleasant, maintaining good eye contact.  There was no inappropriate behavior during the examination.  Speech was both relevant and coherent, and there was no sign of any irrelevant, illogical, or obscure speech patterns.  The Veteran described times when he would go off into "another world," but the examiner noted that this did not appear to be typical of hallucinations associated with a psychotic disorder.  Mood was slightly dysthymic with a corresponding affect.  He was oriented as to time, place, and person.  Memory appeared to be intact, but he had some difficulty in concentrating.  The examiner found that there did not appear to be any impairment of thought process or communication.  There did not appear to be any sign of a delusional framework present, though the Veteran reported times when, for example, while sitting in his chair, he would reach to pet his dog and the dog would not be there.  The Veteran did not describe any behavior that appeared to the examiner to be obsessive or ritualistic in nature.  He indicated that, when he was working on a project, he had his own organized way to do things to facilitate reassembly.

The Veteran described some specific situations where he could feel anxious, but none of these, in the examiner's opinion, reached the level of a panic attack.  There was no somatoform disorder present.  He reported frequent depression.  He also reported that sleep was problematic, often lasting only two hours or so; sleep was said to be impaired by chronic neck and back pain.  The Veteran reported Vietnam-related flashbacks and periodic dreams about his time in Vietnam.  He reported that it was hard for him to be around people.  Otherwise, the examiner noted the Veteran's report of becoming depressed frequently, and that during this time the Veteran would become quick to anger, isolate himself, and have little energy.  The examiner also noted that the Veteran did not have a personality disorder.

The examiner's diagnosis (utilizing DSM-IV criteria) was Axis I PTSD without any Axis II related diagnosis for a personality disorder.  The Axis III (general medical conditions) diagnoses were chronic neck and tail bone pain with surgeries, heart attack, and seizures.  In Axis IV (psychosocial and environmental problems) the examiner noted poor finances, unemployment, estrangement from children, and poor social support system.  The Axis V (global assessment of functioning (GAF) score) report was 50 (i.e. reflective of serious symptoms).

During his RO hearing in November 2005 and his later February 2007 Board hearing before the undersigned VLJ, the Veteran and his spouse discussed the Veteran's problems with social isolation, anger, and difficulty getting along with other people.

Following the Court's May 2008 remand, the Veteran's attorney submitted an October 2009 psychological assessment of the Veteran conducted by J. Mangold, Ph.D.  Dr. Mangold noted that he had reviewed the Veteran's entire record and also interviewed the Veteran for three hours.  (The psychological report notes that a break during the interview and psychological testing was taken.)  The psychological testing was conducting, which was reported as showing that the Veteran did have PTSD and that he was depressed.  Dr. Mangold's diagnosis was PTSD, chronic and severe; and major depressive disorder, severe, without psychotic features.  He reported a GAF score of 45.  In his assessment, Dr. Mangold noted, in particular, that since the Veteran's September 2004 VA examination it appeared that the Veteran's depression had worsened and because of this the Veteran had little desire to do much beyond simply sit in his bedroom or tinker in his garage.  He did have interaction with one friend but otherwise his socialization was virtually nonexistent.  Dr. Mangold concluded that the Veteran's anger management had also worsened since his last VA examination as had his isolation.  The anger and isolation, according to Dr. Mangold, were directly related to the Veteran's PTSD and concomitant severe depression.  Otherwise, Dr. Mangold opined the following:

I believe [the Veteran's] PTSD symptomatology and the very severe depression which is clearly related to it are together so severe that even if his physical ailments were not as limiting as they are, he would be unemployable.

In April 2012, the Veteran underwent a VA PTSD examination.  The examiner's findings and conclusions, as noted in her report, were that the Veteran's PTSD symptoms were no more than mild and that the majority of the Veteran's psychiatric impairment was the result of a personality disorder.  In this regard, the examiner commented that the Veteran met the full criteria for antisocial personality disorder with past documentation of borderline, narcissistic, impulsive, stubborn, and self-defeating traits.  Furthermore, the VA examiner noted that the Veteran's antisocial personality and other traits were not caused by the Veteran's military service nor were they exacerbated or permanently aggravated by military service.  The VA examiner concluded that the Veteran's PTSD did not render the Veteran unable to secure and maintain employment.  In support of her findings, the VA examiner cited to various VA treatment records and the Veteran's comments during the interview process.

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7. Vet. App. 55, 58 (1994).  Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings.  Id.  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.  38 C.F.R. � 4.7.

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. � 4.126(a).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. � 4.126(b).

The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be an exhaustive list.  The Board need not find all or even some of the symptoms to award a specific rating.  If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).

In addition, evaluation under � 4.130 is symptom-driven in that a veteran may only qualify for a given disability rating under this criteria by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Furthermore, � 4.130 requires not only the presence of certain or similar symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013).

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

A 50 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. � 4.130.

A 70 percent evaluation is warranted if the evidence establishes there is 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); and/or inability to establish and maintain effective relationships.  38 C.F.R. � 4.130.

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

Initially, references in various treatment records note the Veteran's apparent report of having served three tours of duty in Vietnam or of having been in Vietnam for three years.  Also referenced was the apparent report by the Veteran that he was a sniper, a member of special operations, and that he participated in unit reconnaissance missions.  The Veteran's personnel records do not necessarily support this history.  The records show the Veteran's service in Vietnam from January 1967 through May 1969, with subsequent service at Camp Lejeune, North Carolina and also in Washington, DC.  Otherwise, the Veteran's military occupational specialty (MOS) was automotive mechanic and his unit of assignment was identified in Vietnam as Wing Equipment Repair Squadron (WERS)-17, Marine Wing Support Group (MWSG)-17, of the 1st Marine Air Wing (MAW).  The unit was noted as being stationed at Da Nang Air Base.

As noted above, the VA examiner in September 2004 did not find the Veteran to have a personality disorder.  Based on findings related to the VA examination the Veteran's PTSD rating was increased to 50 percent.  The Veteran's VA treatment records during this period reflect anger, isolation, and interpersonal and marital conflicts.  The findings and opinion of Dr. Mangold in October 2009, likewise, did not indicate that the Veteran's overall psychiatric picture was related to a personality disorder.  Otherwise, Dr. Mangold found that the Veteran's PTSD symptomatology and his "very severe" depression were related.  The Board finds nothing in the record that calls into question the veracity of Dr. Mangold's report or his conclusion.

The VA examiner's April 2012 findings and conclusion, as noted above, are in direct contrast to those of the September 2004 VA examiner and Dr. Mangold.  Her finding of a significant personality disorder (noted as preexisting service and not aggravated by service) and otherwise mild PTSD symptoms nonetheless does appear to have support in the record.  In particular, a January 2013 VA mental health outpatient treatment record notes the Veteran having symptoms of PTSD consistent with flashbacks, nightmares, and violent ideation.  The psychologist added:

The veteran is relatively concrete and opinionated.  He shows PTSD from [V]ietnam but also has some antisocial and narcissistic traits which propel violent ideas and police standby is now suggested . . .

The April 2012 VA examiner has provided a thorough assessment of the Veteran's psychiatric symptoms and what she believes to be his predominant psychiatric disability.  As such, the Board finds her report to be persuasive.  The Board cannot say, however, that it finds Dr. Mangold's findings and conclusion any less persuasive.  While it would have been helpful to the Board if Dr. Mangold had specifically addressed whether the Veteran's symptoms were or were not related to a personality disorder, his lack of such reporting does not change the Board's view of the thoroughness of his report.  As noted above, Dr. Mangold interviewed the Veteran for a significant period of time and conducted psychological testing.  The Board notes that mental health clinicians do not always agree on the nature and etiology of a patient's psychiatric illness or disorder.  The present case reflects such disagreement.

The Board has considered whether further development of the record, in the form of obtaining an additional medical examination and opinion, is necessary to make an informed decision on the Veteran's claim.  In this regard, the Court has held that it is not permissible for VA to undertake additional development if the purpose of that development is to obtain evidence against an appellant's case.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  However, the Court later distinguished Mariano, holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim.  Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).  In light of the nature of psychological disorders and the difficulty in accurately assessing a person's mental state, the Board, for this reason, will accept that the record on appeal is fully developed.

With that said, in light of the above discussion and finding the evidence in equipoise, the Board accepts the Veteran's overall psychiatric picture as being related to his service-connected PTSD.

Otherwise, the Board finds the Veteran's overall psychiatric picture more nearly approximates a 70 percent rating for PTSD since his claim for a higher rating.  The Board finds the evidence demonstrates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous depression; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  The Veteran's VA treatment records document his social isolation, family-related conflicts, as well as issues with judgment and mood.

In finding that a 70 percent rating is in order, the Board accepts that the Veteran's symptomatology fluctuates as was noted in an August 2009 VA psychiatry note.  In this regard, treatment records have demonstrated instances in which the Veteran's symptoms appear diminished, but later records appear to show a worsening of the Veteran's mental health due to depression and stress.  Also, the Board is mindful the Veteran has shown he is capable of social interaction with others.  He is married and did have a working relationship with a friend fixing cars for resale while living in Indiana.  However, the evidence demonstrates a pattern of isolation that more nearly approximates the inability to establish and maintain effective relationships.  In so finding, the Board is mindful that the Veteran appears to blame his spouse, in part, for his lack of socialization due to her jealousy.  The Veteran's spouse on the other hand has testified that she has tried to get the Veteran to be more social but has not necessarily been successful.  In this case, the Board cannot say that the ability to establish and maintain effective relationship is readily shown.

The September 2004 VA examiner assigned a GAF score of 50 for the Veteran's psychiatric impairment.  In October 2009, Dr. Mangold assigned a GAF score of 45.  The April 2012 VA examiner assigned a GAF score of 50 for those psychiatric symptoms she associated with a personality disorder.  The Board notes that GAF scores ranging from 41-50 are reflective of serious symptoms or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job, cannot work).

Therefore, taking into account the requirement that the higher of two evaluations will be assigned if the disability picture more nearly approximates the criteria required for that rating, the Board finds that the Veteran can be said to meet the rating criteria for a 70 percent rating.  Here, a 70 percent rating contemplates the frequency, severity, and duration of the Veteran's symptoms and is assigned based on all the evidence of record rather than any isolated medical finding or assessment of level of disability.  38 C.F.R. � 4.126(a).  Furthermore, it bears noting that in requiring only an approximate balance of positive and negative evidence to prove any issue material to a claim for veterans' benefits, the nation, "in recognition of our debt to our veterans," has "taken upon itself the risk of error" in awarding such benefits.  See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

The Board does not otherwise find that the Veteran's disability picture demonstrates or more nearly approximates a 100 percent rating under Diagnostic Code 9411 for gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  As noted above, the evidence did not clearly endorse assignment of a 70 percent rating for the Veteran's PTSD but more nearly approximated such a rating.  Also, while the Veteran has demonstrated what is perceived as threatening behavior toward VA clinicians, the evidence does not show the Veteran as being a persistent danger to himself or to others.  Therefore, an increased rating to 100 percent for PTSD is not warranted.

Consideration has also been given to whether the schedular rating is inadequate, requiring that the RO refer the claim to the Chief Benefits Director or the Director, Compensation Service, for consideration of an extra-schedular evaluation.  Such a referral is warranted where a service-connected disability presents an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards.  38 C.F.R. � 3.321(b)(1) (2014).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The schedular ratings in this case for the Veteran's service-connected PTSD are found adequate.  There is no showing that the Veteran's service-connected PTSD is so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  Here, the rating criteria describe or contemplate the severity and symptomatology of the Veteran's psychiatric disability.  His symptoms are contemplated in the rating criteria under Diagnostic Code 9411.  As no exceptional or unusual disability picture has been shown, the Board need not consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Therefore, the Board does not find that referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is warranted.  Thun, 22 Vet. App. at 115-16; 38 C.F.R. � 3.321(b)(1).

Entitlement to a TDIU

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability.  38 C.F.R. �� 3.340, 3.341, 4.16(a).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. � 4.16(a).  Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991).  Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran's advancing age.  38 C.F.R. � 3.341(a); see 38 C.F.R. � 4.19 (2014) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

As noted above, the Board has found the Veteran's PTSD warrants a 70 percent rating since his claim for a higher rating for PTSD.  As such, the Veteran meets the schedular standards for a TDIU under 38 C.F.R. � 4.16(a).  Here, following review of the evidence, the Board finds reasonable doubt as to whether the Veteran's service-connected PTSD precludes gainful employment.  Finding reasonable doubt in the Veteran's favor, entitlement to a TDIU is warranted.

Here, there is no doubt that the Veteran's nonservice-connected disabilities play a role in precluding gainful employment.  However, the Board also finds the Veteran's service-connected PTSD also results in significant impairment affecting the Veteran's ability to obtain or maintain gainful employment.  Furthermore, there is medical opinion evidence supportive of the Veteran's unemployability.  As noted previously, Dr. Mangold opined:

I believe [the Veteran's] PTSD symptomatology and the very severe depression which is clearly related to it are together so severe that even if his physical ailments were not as limiting as they are, he would be unemployable.

The Board is mindful of the April 2012 VA examiner and her comments regarding the extent of the Veteran's disability related to PTSD.  As discussed previously, the Board is accepting the Veteran's full psychiatric picture as being as likely as not due to his service-connected PTSD.  The examiner did not otherwise comment on the Veteran's employability taking such into consideration.

The Board is also mindful that the Veteran appears capable of working at certain projects he enjoys, such as refurbishing automobiles.  In October 2006 it was noted by a VA psychologist that the veteran was feeling better and was more active.  Indeed, reports prepared from May to October 2006 show that the Veteran was improving, especially as he worked more and got out of the house more.  Nonetheless, the Board does not find that more recent evidence supports a conclusion that he could obtain and maintain gainful employment.  This fact is supported by Dr. Mangold's above-quoted opinion.

Reasonable doubt is found in the Veteran's favor and entitlement to a TDIU is consequently warranted.

ORDER

A rating of 70 percent for PTSD is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to an award of TDIU is granted, subject to the law and regulations governing the award of monetary benefits.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: K PARAKKAL

disposition: granted

condition: psychiatric

text: A TDIU is granted.

disposition: remanded

text:
Citation Nr: 1512000
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO.  13-06 624A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin

THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, type 2 (DM2), to include as secondary to service-connected disabilities.

2.  Entitlement to an initial disability rating in excess of 50 percent for anxiety disorder, not otherwise specified (NOS) with subclinical posttraumatic stress disorder (PTSD).

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

REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs

ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel

INTRODUCTION

The Veteran served on active duty from May 1985 to August 1985 and from November 1990 to September 1991 with service in the Southwest Asia Theater of Operations from January 1991 to August 1991.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2011 and September 2011 rating decisions of the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of this appeal, a statement of the case (SOC) was issued in February 2015 on the issues of increased ratings for migraine headaches, irritable bowel syndrome and temporomandibular disorder as well as entitlement to a TDIU.  Although a timely substantive appeal has not been received yet, the Board observes that the Veteran has 60 days from the date the SOC was issued to perfect an appeal on those issues, which has not expired as of the date of this decision.

In light of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009), and as the Veteran is trying to establish his entitlement to the maximum possible rating for his service-connected psychiatric disability on appeal, which at least partly formed the basis of his TDIU claim, the Board assumes jurisdiction over the claim for TDIU, which is considered part and parcel of the claim for an increased rating for his service-connected anxiety disorder, NOS, with subclinical PTSD.  See also Hurd v. West, 13 Vet. App. 449 (2000); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009).  Therefore, the TDIU claim dates back to the earliest time that the claim for service connection for the Veteran's psychiatric disorder on appeal was originally filed, in November 2010.

This case was wholly processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.

The issue of service connection for DM2 is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The probative evidence of record indicates the Veteran's anxiety disorder, NOS, with subclinical PTSD is productive of occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking and mood.

2.  The probative evidence of record indicates the Veteran's anxiety disorder, NOS, with subclinical PTSD precludes the Veteran from obtaining and maintaining employment that could be considered substantially gainful versus just marginal by comparison, when also considering his level of education, prior work experience and training, but not his advancing age or disabilities that are not service-connected.

CONCLUSIONS OF LAW

1.  The criteria for a schedular rating of 70 percent for anxiety disorder, NOS, with subclinical PTSD have been met.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. � 4.130, Diagnostic Code 9413 (2014).

2.  The criteria for a TDIU have been met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

VCAA notice consistent with 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. � 3.159(b)(1) (2014).  To the extent possible, VCAA notice, as required by 38 U.S.C.A. � 5103(a) (West 2014), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The duty to notify was satisfied by way of December 2010, February 2011, June 2011 and January 2012 letters sent to the Veteran.  VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible.  The evidence of record includes STRs, service personnel records, private and VA medical records, VA examinations, vocational rehabilitation records, court documents and statements from the Veteran and his representative.

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision.  Rather, remanding this case to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable.  The Veteran has been accorded ample opportunity to present evidence and argument in support of this appeal.  All pertinent due process requirements have been met.  See 38 C.F.R. � 3.103 (2014).

Analysis

Increased Initial Rating for Anxiety Disorder NOS with Subclinical PTSD

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 (2014).  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 (2014).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. � 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  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).

Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

The Veteran's anxiety disorder, NOS, with subclinical PTSD is assigned a 50 percent evaluation under 38 C.F.R. � 4.130, Diagnostic Code 9413, which is evaluated under the general rating formula for mental disorders.  Under this general rating formula, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. � 4.130, Diagnostic Code 9413 (2014).

A 70 percent rating is warranted when there is 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.  Id.

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

The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).  A GAF score ranging from 61 to 70 indicates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  A GAF score ranging from 51 to 60 indicates 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 peer or coworkers).  A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends), while a GAF score of 31 to 40 indicates major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).  See Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV).

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. � 4.130.  Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule.  Rather, they are but one factor to be considered in conjunction with all the other evidence of record.

The medical evidence of record, including the VA medical records, Vet Center records, vocational rehabilitation records, court documents, private counseling reports and the VA examination reports, collectively indicates that the Veteran's PTSD is productive of symptoms resulting in occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking and mood.  Court documentation indicates the Veteran had several criminal charges filed against him for domestic violence/abuse and disorderly conduct from 1993 to, most recently, in 2010.  Following his September 2008 violation, he was on probation and ordered by a court to seek counseling, as noted in a January 2009 VA outpatient treatment report.  Since that time, VA medical records, as well as Vet Center and other private counseling reports, reflect the Veteran continually sought treatment for anger management, control issues, alternatives to violence, anxiety and family counseling.  The Veteran denied any suicidal or homicidal ideation and no thought disorders were noted, however, he has reported in statements to VA and in the VA outpatient treatment records that he has had suicidal thoughts, mainly in 2008 and 2010.  VA medical records also demonstrate that while the Veteran has good family relationships with his son and his siblings, his family has voiced concern over anger and control issues and he has continually had problems with anger and violence in his personal relationships with significant others.

Vocational rehabilitation records, employer information and letters from prospective employers demonstrate that the Veteran is attempting to pursue an associate's degree currently, although during the appeal period he has been working in temporary or part-time employment positions and has had his employment applications rejected, including due to his past criminal record.  In an October 2014 statement, the Veteran reported having stopped his part time employment because he was unable to deal with the environment and that he stopped vocational rehabilitation due to anxiety.

Accordingly, and resolving all reasonable doubt in the Veteran's favor, the probative lay and medical evidence of record supports the assignment of a higher initial rating of 70 percent for his anxiety disorder, NOS, with subclinical PTSD since the filing of the claim of entitlement to service connection for this condition, though no greater rating.  Throughout the period of the appeal, his most disabling symptoms included his anxiety as well as his anger, irritability and violence issues.  Also during this time, his GAF scores have ranged from a low of 55 to a high of 75.  Thus, in considering these symptoms and their resulting impairment in his social and occupational functioning, and with a view of the evidence in a light most favorable to him, the Veteran's level of impairment more nearly approximates that required for a higher 70 percent rating, though not an even greater 100 percent rating.

Although a 70 percent rating is warranted, the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 70 percent.  Despite the occupational and social impairment demonstrated in the record, the evidence of record does not show findings or complaints demonstrating total occupational and social impairment due to symptoms such as:  gross impairment in thought processes or communication; 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, so as to in turn warrant assignment of an even higher 100 percent schedular rating.

While the record reflects some suicidal thoughts, impaired impulse control and difficulty in adapting to stressful environments, these symptoms are contemplated by the 70 percent rating being assigned.  Although, as noted in Mauerhan, the Veteran need not have all or even most of the particular symptoms in order to warrant a 100 percent evaluation, his PTSD symptomatology does not demonstrate total social and occupational impairment, as he has been able to maintain social relationships with his son and his siblings.  See Mauerhan, 16 Vet. App. 436.  Similarly, while there is evidence of some suicidal thoughts, and continued anger management issues with a history of domestic violence toward his significant others in the past, there is no evidence in the record describing him as being a persistent danger of hurting himself or others.  In fact, VA outpatient treatment reports include findings that the Veteran has continually denied suicidal and homicidal ideation. Therefore, the probative evidence of record does not more nearly approximate the criteria for a 100 percent disability rating at any time since the filing of the claim for this disability.  38 C.F.R. �� 4.3, 4.7.

The Board observes that the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing psychiatric symptoms.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board finds that the statements provided by the Veteran regarding the effects of his current psychiatric symptoms on his daily life are competent and credible and the Board has relied on these reports in finding that a 70 percent disability rating is warranted.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).

Under the circumstances of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 70 percent disability rating for anxiety disorder, NOS, with subclinical PTSD are met since the date of claim.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  38 C.F.R. �� 3.102, 4.3, 4.130 (2014).  See also 38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Extraschedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant remand to refer this claim for extraschedular consideration.  38 C.F.R. � 3.321(b)(1) (2014).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, there must be a comparison between the level of severity and the symptomatology of the Veteran's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral to the Director of the Compensation Service for consideration of an extraschedular rating is required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's psychiatric disorder are contemplated by the schedular criteria.  The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected psychiatric disorder, such that he is adequately compensated for "considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  See 38 C.F.R. � 4.1 (2014).  Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule.  In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating.  Accordingly, the Board has determined that remand for referral of this case for extraschedular consideration is not in order.

The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected symptoms experienced.  However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Finally, as the Board has found a TDIU claim is warranted, no further discussion of entitlement to TDIU is necessary. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).

 In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b) ; 38 C.F.R. � 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996).

TDIU

Total disability ratings are authorized for any disability or combination of disabilities, provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities.  If there is only one such disability, it must be rated as at least 60 percent disabling.  Whereas, if there are two or more disabilities, at least one must be rated as at least 40 percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent.  38 C.F.R. �� 4.15, 4.16(a).  Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met.

In exceptional circumstances, where the Veteran does not meet these percentage requirements, a total rating nonetheless may be assigned on an extra-schedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities.  38 C.F.R. � 4.16(b).

In considering the award of a 70 percent rating for the Veteran's anxiety disorder, NOS, with subclinical PTSD, the Board observes that the schedular criteria of 38 C.F.R. � 4.16(a) for a TDIU have been met from since the date the Veteran filed his claim for service connection for a psychiatric disorder in November 2010.

While there is not total occupational and social impairment, per se, to warrant assigning an even higher 100 percent schedular rating for the anxiety disorder, NOS, with subclinical PTSD, this service-connected disability does nonetheless preclude the Veteran from obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison, when also consider his level of education, prior work experience and training, but not his advancing age and disabilities that are not service connected.  As noted above, the Veteran's VA medical records, Vet Center records, vocational rehabilitation records, court documents, private counseling reports and the VA examination reports, together demonstrate that the Veteran has continued to struggle to obtain and maintain substantially gainful employment.  Vocational rehabilitation records, employer information and letters from prospective employers demonstrate that during the appeal period he has been working in temporary or part-time employment positions and has had some employment applications rejected, once due to his past criminal record.  In an October 2014 statement, the Veteran reported having stopped his part time employment because he was unable to deal with the environment and that he stopped vocational rehabilitation due to anxiety.

The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that "[r]equiring a Veteran to prove that he or she is 100 percent unemployable is different than requiring him or her to prove that he or she cannot maintain substantially gainful employment.  The use of the word 'substantially' suggests an intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that the Veteran prove 100 percent unemployability leaves no flexibility."  See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for [a] TDIU because of 'subjective' factors that the 'objective' rating does not consider."  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  Accordingly, in addition to receiving the higher 70 percent rating for his psychiatric disability, a TDIU is also warranted.

Based on a review of the relevant evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports his claim of entitlement to a TDIU.  38 C.F.R. � 4.16(a).  See 38 U.S.C.A. � 5107; 38 C.F.R. � 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

An initial disability rating of 70 percent for anxiety disorder, NOS, with subclinical PTSD is granted, subject to the regulations applicable to the payment of monetary benefits.

A TDIU is granted.

REMAND

Although the Veteran was provided a VA General Medical examination in April 2011, which addressed his diabetes, and opinions regarding the Veteran's diabetes were also provided in a May 2011 VA psychiatric examination and in an August 2011 VA opinion report, none of the examiners considered evidence of record indicating the Veteran had been exposed to low levels of neurotoxins while serving during the Persian Gulf War or the online medical treatise information indicating a relationship between PTSD and diabetes.  Thus, there has been no adequate VA examination of the Veteran's DM2.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Considering the Veteran is currently service-connected for anxiety disorder, NOS, with subclinical PTSD, the online medical treatise information indicates a relationship between PTSD and diabetes, and the July 1997 and December 2000 letters from Department of Defense to the Veteran indicating his unit was exposed to low levels of nerve agents during his active service, an adequate VA examination and opinion are needed to assist in determining whether the Veteran's currently diagnosed DM2 was caused by or is related to his active service or whether such disability was caused or is being aggravated by his service-connected disabilities, to include anxiety disorder, NOS, with subclinical PTSD.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear, 20 Vet. App. 410 (2006); see Waters, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

In addition, as the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained.  38 U.S.C.A. � 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, which have not been associated with the record.  Documentation of all efforts to obtain these records should be included in the claims file.

2.  Upon receipt of all additional records, schedule the Veteran for a VA examination.  The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination to determine the current nature and etiology of the Veteran's diabetes mellitus, type 2 (DM2) disability.  The examination report is to contain a notation that the examiner reviewed the claims file.

Please review the Veteran's claims file carefully, including, especially: (a) the online medical treatise information indicating a relationship between PTSD and diabetes, which was received in February 2011; and the July 1997 and December 2000 letters to the Veteran from Department of Defense indicating his unit was exposed to low levels of nerve agents during his active service.

Please also note: the Veteran is competent to attest to any lay observable events during his active service (i.e. witnessing smoke from oil fires).

The examiner is then asked to answer the following:

(a).  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed DM2 was incurred during his active military service, within one year of his discharge, or is otherwise related to any disease, event, or injury during his service, to include the confirmed exposure to low levels of nerve agents or smoke from oil fires during his active service.

(b).  Whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed DM2, alternatively was caused OR is being aggravated by his service-connected disabilities, including especially his anxiety disorder, NOS, with subclinical PTSD, or any treatment rendered for these disabilities.

(c).  If it is determined that the currently diagnosed DM2 is being aggravated by any service-connected disability, to the extent possible the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation.

Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence.  Please also specifically address the evidence listed above in your explanation.

3.  Ensure the examiner's opinion is responsive to the determinative issue of etiology of DM2 at issue in this appeal.  If not, return the report(s) for all necessary additional information.  38 C.F.R. � 4.2.

4.  Then readjudicate this claim in light of this and all other additional evidence.  If the claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: STEVEN D REISS

condition: tinnitus

text: Initially, the Board notes that the Veteran reported at his February 2015 hearing that he received treatment from a Dr. Corbin for his hearing problems after his separation from service. See Transcript pp. 7, 9-10. However, no records from this clinician appear in the evidence on file, nor does it appear the Veteran ever submitted a release for such records. Consequently, the Board concludes that a remand is required in order to obtain any such records. [is remanded]

text:
Citation Nr: 1513000
Decision Date: 03/26/15    Archive Date: 04/03/15

DOCKET NO.  14-21 615	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

John Kitlas, Counsel
INTRODUCTION

The Veteran served on active duty from October 1983 to August 1987.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2015.  At the February 2015 Board hearing, the Veteran raised a claim of service connection for back disability.  This issue is referred to the RO for appropriate action.

For the reasons addressed in the REMAND portion of the decision below, the Veteran's hearing loss claim is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

The competent and credible evidence of record reflects it is at least as likely as not the Veteran developed tinnitus as a result of his active service.

CONCLUSION OF LAW

The criteria for a grant of service connection for tinnitus are met.  38 U.S.C.A. �� 1110, 1131, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.307, 3.309 (2014); Charles v. Principi, 16 Vet. App. 370 (2002); Fountain v. McDonald, No. 13-0540 (U.S. Vet. App. February 9, 2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. � 1154(a); 38 C.F.R. � 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board further observes that the Veteran's lay testimony is of particular importance in this case as the determination of whether service connection is warranted for tinnitus turns almost entirely on his lay testimony.  Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking.  It is usually subjective in type."  Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003).  As noted above, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002).  If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination.  In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them.  The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination.

The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system.  38 C.F.R. �� 3.307, 3.309(a).  The United States Court of Appeals for Veterans Claims (Court) recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. � 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'"  Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. � 3.303(b).  Fountain.

The Veteran has essentially contended that he developed hearing loss and tinnitus as a result of in-service acoustic trauma and has described the circumstances thereof.  Moreover, his account of this in-service trauma has already been deemed credible below.  Therefore, the issue is whether his claimed disabilities are due to the in-service acoustic trauma.

The Board observes that nothing in the record reflects the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. � 3.159(a)(1).  However, as already noted tinnitus can be diagnosed by lay evidence alone.  Moreover, the Veteran has indicated that his tinnitus developed during active service, and that he first sought treatment for hearing problems within a year after his separation from service.  In short, he has indicated continuity of symptomatology which would warrant consideration of 38 C.F.R. � 3.303(b), as well as the presumptive provisions of 38 C.F.R. �� 3.307, 3.309(a).  Nothing in the record available for the Board's review appears to explicitly refute the Veteran's contentions on this matter.

The Board notes that a February 2013 VA examination stated that the Veteran did not describe tinnitus, but describes a "popping" or "crackling" in both ears.  Similarly, in a May 2013 addendum, the VA examiner stated that "popping" and "clicking" noise not consistent with noise-induced tinnitus.  However, such terms appear consistent with the definition of tinnitus referenced above.  As such, the examiner's statement does not appear to constitute a basis to deny the claim.  Moreover, the examiner did check the box on the February 2013 VA examination to reflect the Veteran did have recurrent tinnitus.  Further, the Board notes that the law mandates resolving all reasonable doubt in favor of the Veteran in this case.  See 38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

In view of the foregoing, the Board finds that the competent and credible evidence of record reflects it is at least as likely as not the Veteran developed tinnitus as a result of his active service.  Therefore, service connection is warranted for this disability.

ORDER

Service connection for tinnitus is granted.

REMAND

Initially, the Board notes that the Veteran reported at his February 2015 hearing that he received treatment from a Dr. Corbin for his hearing problems after his separation from service.  See Transcript pp. 7, 9-10.  However, no records from this clinician appear in the evidence on file, nor does it appear the Veteran ever submitted a release for such records.  Consequently, the Board concludes that a remand is required in order to obtain any such records.

The Board also notes that, for the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. � 3.385.  In this case, the hearing loss claim was denied below, in part, because the Veteran did not have a hearing loss disability as defined by 38 C.F.R. � 3.385.  Specifically, the February 2013 VA examination revealed pure tone thresholds, in decibels, as follows:

HERTZ

500
1000
2000
3000
4000
Average
RIGHT
20
20
20
15
25
20
LEFT
15
20
20
14
20
19

Speech recognition scores were 100 percent for the right ear, and 96 percent for the left ear.

The Board notes, however, that the Veteran challenges the adequacy of the February 2013 VA examination at his February 2015 hearing, and has contended his hearing has gotten worse since that examination.  He also submitted additional evidence following this hearing accompanied by a waiver of initial AOJ consideration of such in accord with 38 C.F.R. � 20.1304(c).  This evidence consists of a March 2014 audiogram report from R. Brooke, a private audiologist, which is on VA's VBMS system.  However, the actual results of this audiogram are difficult to read in this format, although there is a written notation that there was sensorineural hearing loss in the right ear.

In view of the foregoing, the Board finds that a remand is also required to accord the Veteran a new VA examination to determine whether he does have a hearing loss disability of either ear as defined by 38 C.F.R. � 3.385, and, if so, whether such a disability was incurred in or otherwise the result of his active service.  Moreover, as he submitted an audiogram report from a private audiologist it appears this clinician may also have treatment records relevant to this case.  Therefore, a remand is also required to obtain any such records.

Accordingly, the case is REMANDED for the following action:

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

1.  Request the Veteran provide any necessary release for records from Dr. Corbin and R. Brooke, as well as the names and addresses of all medical care providers who have treated him for hearing loss since February 2013.  Even if the Veteran does not respond, determine if there are any VA treatment records for the relevant period.  After securing any necessary release, obtain those records not on file.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service hearing loss symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his claimed hearing loss.  The claims folder should be made available to the examiner for review before the examination.

If the Veteran is shown to have a hearing loss disability as defined by 38 C.F.R. � 3.385 for either ear, then the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of his active service to include his acknowledged in-service acoustic trauma.

A complete rationale for any opinion expressed should be provided.  An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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.

4.  After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the May 2014 SOC, and provides an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


text:
Citation Nr: 1515000
Decision Date: 04/07/15    Archive Date: 04/21/15

DOCKET NO.  12-14 761	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUE

Entitlement to service connection for hypertension.

REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs

ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel

INTRODUCTION

The Veteran had active military service from March 1978 to March 1981 and from October 1982 to January 1987.

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for hypertension, finding that the Veteran had not submitted new and material evidence to reopen the claim.

This issue was reopened and remanded by the Board for additional development in November 2014.  It is again before the Board for further appellate review.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

Unfortunately, a remand is again required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.

The Veteran's claim was remanded in November 2014 for an addendum opinion concerning the etiology of his hypertension.  The Board specifically addressed the examiner to "address the lay statements of record reflecting that the Veteran had headaches while on active duty, and opine as to whether these headaches were related to his hypertension."

Review of the resulting January 2015 VA medical opinion reveals that this did not occur.  While a negative opinion was generated, the lay statements of record were not addressed anywhere in the report, rendering it inadequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As there was not substantial compliance with the remand directives, another remand is necessary for corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

1. Request that the examiner who provided the January 2014 examination and the January 2015 addendum opinion review the claims file (including paper records and/or records in the Virtual VA and VBMS systems) and provide an opinion as to the etiology of the Veteran's hypertension, that addresses the lay statements of record. If the January 2014 examiner is not available, the required opinion should be obtained from a similarly qualified examiner.  If further examination or testing is needed, this should be undertaken.

Consideration of the claims file should be reflected in the completed examination report or in an addendum.

The examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension was caused by, had its onset in, or is etiologically related to active duty.  The examiner must also address whether the Veteran's hypertension manifested within one year of service separation.

In providing this opinion, the examiner must address the lay statements of record reflecting that the Veteran had headaches while on active duty, and opine as to whether these headaches were related to his hypertension.  These statements include the Veteran's own statements (most recently found in his July 2014 letter) and the December 2013 letter from his second wife.

The examiner is reminded that if he/she does not address the lay statements in the rationale, any opinion generated will be inadequate and further corrective action will be mandated.

The examiner must provide reasons for each opinion.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.

The absence of evidence of treatment for hypertension or headaches in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so.

2. After the requested medical opinion has been generated, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the examiner for corrective action.

3. Finally, readjudicate the claim on appeal.  If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


text:
Citation Nr: 1516000
Decision Date: 04/14/15    Archive Date: 04/21/15

DOCKET NO.  10-13 801	)	DATE
	)
	)

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

THE ISSUE

Entitlement to service connection for asthma.

REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs

ATTORNEY FOR THE BOARD

J. Meawad, Counsel

INTRODUCTION

The Veteran served on active duty from July 1996 to March 1997 and November 2006 to October 2007.  She also served various periods of active duty for training (ACDUTRA) during Reserve service.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The Veteran has served in the Army Reserves and has had several periods of active duty for training; however, the record does not contain a complete list of dates of service for the Veteran.  In addition, the Veteran's complete service treatment and personnel records must be obtained and associated with the claims file.  38 C.F.R. � 3.159(c)(2).

The Veteran was afforded a VA examination in March 2008 regarding her diagnosed asthma, the history of which is not known in any kind of detail.  No opinion was provided as to whether the Veteran's asthma had its onset during or was aggravated by active service or active duty for training.  Therefore, on remand, the Veteran should be provided a VA examination in connection with the claim that takes into account a detailed history of the development of her asthma.

Finally, the record does not contain treatment records prior to April 2007 and following January 2009.  As such, additional development is required in this case.

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that she may submit lay statements from individuals that have first-hand knowledge, and/or were contemporaneously informed of her in-service and post-service asthma.  The Veteran should be provided a reasonable amount of time to submit this lay evidence.

2.  Contact the Veteran and obtain the names and addresses of all medical care providers who treated the Veteran for her claimed asthma.  After securing the necessary release, obtain these records, including any outstanding VA treatment records.  If these records are not available, a negative reply is required.

3.  Make arrangements to obtain the Veteran's Army Reserve records, including a complete list of dates of service, from the U.S. Army Reserve Center, or other pertinent source.  All efforts to obtain these records should be fully documented, and the U.S. Army Reserve Center, and any other source contacted must provide a negative response if records are not available.

4.  Thereafter, schedule the Veteran for a VA examination to determine the etiology of her asthma.  The claims file must be made available to the examiner for review in conjunction with the examination.  All necessary tests must be conducted and the examiner must review the results of any testing prior to completion of the report.

The examiner should record a history of the Veteran's asthma.  The examiner should also determine the date of onset of the Veteran's asthma and the degree of certainty of that date.  Then, the examiner is to offer an opinion as to whether the Veteran's current asthma was aggravated by active service or active duty for training.

In formulating the opinion, the term "aggravation" means a permanent or irreversible worsening of the preexisting condition beyond natural progress as contrasted to a temporary worsening or intermittent flare-ups of symptoms.

A rationale for all opinions expressed must be provided.  If the physician cannot respond without resorting to speculation, he/she must so indicate this and explain the reason why an opinion would be speculative.

5.  Finally, readjudicate the issue on appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).