judge_norm: WAYNE M BRAEUER

text:
Citation Nr: 1626000
Decision Date: 06/28/16    Archive Date: 07/11/16

DOCKET NO.  09-12 498	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUE

Whether the Veteran's left foot plantar fasciitis warrants referral to the Director of Compensation Services for extra-schedular consideration.

REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs

ATTORNEY FOR THE BOARD

B. T. Callahan, Associate Counsel

INTRODUCTION

The Veteran had active service in the U.S. Army from July 2005 to June 2006.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2008 rating decision by the above Regional Office (RO) of the Department of Veterans Affairs (VA), which denied a compensable rating for left foot plantar fasciitis.

In January 2013, the Board issued a decision granting a 10 percent rating for left foot plantar fasciitis, prior to February 19, 2009, and also remanded the issue of entitlement to a rating in excess of 10 percent for left foot plantar fasciitis, effective from February 19, 2009.  That issue was then decided in a December 2015 decision by the Board.  However, as part of the December 2015 decision, the Board remanded the issue of whether or not the Veteran should be referred for extra-schedular consideration consistent with developing case law.  That question having been considered by the RO, the claim is once again before the Board for appellate consideration of the question.

This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System and Virtual VA claims processing systems.

FINDINGS OF FACT

1. The Veteran's left foot plantar fasciitis is manifested by pain upon weight-bearing, along with limitations of the Veteran's functionality in activities such as carrying weight, walking, standing, and running.

2. The Veteran's left foot plantar fasciitis is not so exceptional so as to render the schedular evaluation of the disability inadequate.

CONCLUSION OF LAW

The criteria for referral to the Director of Compensation Services for extra-schedular consideration have not been met.  See 38 C.F.R. � 3.321(b); Thun v. Peake, 22 Vet. App. 111, 115 (2008), Johnson v. McDonald, 762 F.3D 1362 (Fed. Cir. 2014), Yancy v. McDonald, 27 Vet. App. 484, 496 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veteran's Claims Assistance Act of 2000 (VCAA) places certain duties upon the VA to notify and assist a claimant with the development of their claim.  However, in this case the Veteran originally made a claim for an increased rating.  As was detailed above, throughout the adjudicatory process of this case, the issue of the schedular rating of the Veteran's plantar fasciitis has been decided. Only the issue of whether or not the Veteran should be referred for extra-schedular consideration remains in this case.  This issue constitutes a "downstream issue", which VA's Office of General Counsel has determined that the VCAA does not require additional notice for such issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Accordingly, no additional notice is required in this case.

However, the VCAA does place on the VA a duty to assist the Veteran by making reasonable efforts to obtain evidence necessary to substantiate the claim for benefits, unless no reasonable probability exists that such assistance would aid in substantiation of the claim.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  To that end, the Veteran's service treatment records and post-service medical records have been obtained.  The Veteran was also provided with VA medical examinations of her left foot in June 2015 and March 2016.  These examinations included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses, which were supported in the record.  These VA examination reports are adequate for the purposes of this case.  See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007).

Finally, as was noted above, this case comes to the Board after a December 2015 remand by the Board required the RO to consider whether the Veteran should be properly referred for extra-schedular consideration, in light of certain developments in case law.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008).

On December 30, 2015 the RO provided the Veteran with a Supplemental Statement of the Case in which the RO explained that such a referral was not warranted, given the evidence of the Veteran's limitations and abilities contained in the record.  In light of this statement from the RO, the Board finds that the VA has substantially complied with the December 2015 remand directives, and the Board may continue to a decision on this issue.  As such, the Board finds that no further notice or assistance is necessary in this case, under the VCAA.

II. Analysis

As was discussed above, the question of the Veteran's schedular rating for her left foot plantar fasciitis has been fully adjudicated by the Board in January 213 and December 2015 decisions.  Only the question of whether the Veteran is properly referred for extra-schedular consideration remains in this case.

That said, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Director of Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. � 3.321(b).  The determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate."  Thun, 22Vet. App 115.  If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors", such as marked interference with employment or frequent periods of hospitalization.  Thun, 22Vet. App 116.  Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted.  Thun, 22Vet. App 116.

In completing this analysis, the Court of Appeals for the Federal Circuit and the Court of Appeals for Veterans Claims have made it clear that the analysis not simply limited to effects of the single disability standing alone.  Rather, the VA, and therefore the Board, must consider the cumulative impact of all of the Veteran's service connected disabilities upon the disabilities on appeal in a given case.  Johnson v. McDonald, 762 F.3D 1362 (Fed. Cir. 2014), Yancy v. McDonald, 27 Vet. App. 484, 496 (2016).  The Board does not, however, have jurisdiction to adjudicate the propriety of referral of disabilities not on appeal at the time.

In this case, only the Veteran's left foot plantar fasciitis is currently on appeal.  No other disabilities are currently in appellate status.  Still, the Board notes that the Veteran has been service-connected for several disabilities, including lumbar stain, left shoulder strain, right foot plantar fasciitis, bilateral tibial stress fractures and shin splints of the lower extremities, acne, and an unspecified depressive disorder with generalized anxiety.  Accordingly, the Board must consider whether these other disabilities produce a cumulative effect on the Veteran's left foot plantar fasciitis which is not adequately considered by the schedular rating criteria for the Veteran's left foot.  However, the Board notes, as an initial matter, that the rating criteria for the disability rating schedular do, generally, contemplate functional loss caused by the rated disability.  This functional loss may be manifested by decreased or abnormal excursion, strength, speed, coordination, or endurance, for example.  38 C.F.R. � 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

That being the relevant law in this area, the Veteran's medical records are quite clear that she experiences regular pain in her left foot.  In fact, during the June 2015 VA medical examination, the Veteran reported constant, daily, sharp bilateral foot pain that was stabbing, that her foot got red and hot and was worse after standing for more than 30 minutes, and having a pins and needles sensation over her foot.  The Veteran also reported that her foot pain limited her from walking more than 1 mile, that her standing was limited to 30 minutes, and she was not able to run.  She reported that foot pain limited her activities and caused functional loss, but she denied flare-ups, and reported that pain was accentuated on use of the feet.

During the Veteran's March 2016 VA medical examination, the Veteran continued to report left foot pain.  However, at this time the Veteran stated that she experienced pain only upon weight bearing, which prevented her from standing or walking for more than 20 minutes at a time without significant pain.

With this most recent medical evidence, and the medical evidence previously discussed by the Board in prior decisions, in mind, the Board notes that the Veteran's statements regarding the impact of her left foot disability tend to discuss both her right and left feet, both of which are service-connected for plantar fasciitis with separate 10 percent ratings.  Accordingly, it appears that the Veteran's left foot functional abilities may be additionally limited due to the bilateral nature of her foot disabilities.

In light of this evidence, the Board finds that the Veteran's "disability picture" as discussed in Thun is not so exceptional so as to render the disability rating criteria inadequate.  As was discussed above, the rating criteria, generally, do contemplate a loss of functioning, which can include factors such as decreased strength or endurance.  Here the Veteran's primary complaint with respect to her left foot is that her ability to perform tasks such as prolonged standing and walking are limited by pain.  The Veteran also appears to have great difficulty with tasks such as running and weight bearing, but all of these tasks relate to the strength and endurance of the Veteran's feet.  Accordingly, the Veteran's limitations do appear to be limited in ways contemplated by the rating criteria.

It does appear that the Veteran's functional abilities are greater than the functional limits caused by only the Veteran's left foot disability, given the apparent cumulative effects of the Veteran's bilateral service-connected foot disabilities.  However, the Board notes that these limitations still correspond to the Veteran's abilities with activities such as walking, running, standing, and weight-bearing, all of which are activities contemplated by the rating criteria.  Furthermore, the Veteran is currently rated at 10 percent for each of her feet.  As such, the Veteran is currently compensated under the rating criteria for the cumulative functional losses she experienced from her bilateral foot disabilities.

The Board is aware that the Veteran was granted a total disability rating based on individual unemployability in an April 2016 rating decision, in light of the total effect of her service-connected disabilities.  As such, there is no question that the Veteran's total disability picture does exhibit a "marked interference with employment".  However, there is no evidence to suggest that the total schedular disability rating is inadequate to capture the Veteran's functional loss.

In summation, the record does not demonstrate that the Veteran's disability ratings for her service-connected disabilities are inadequate to capture the cumulative effect of the Veteran's service-connected disabilities on her functional abilities.  As such, while the Board acknowledges a marked interference with the Veteran's employment because of the cumulative effects of her service-connected disabilities,  there does not appear to be an exceptional disability picture which would warrant extra-schedular consideration.

ORDER

Left foot plantar fasciitis does not warrant referral to the Director of Compensation Services for extra-schedular consideration. The appeal is denied.

____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: M E LARKIN

disposition: dismissed

condition: tinnitus

disposition: denied

disposition: granted

condition: back

condition: erectile

disposition: remanded

text:
Citation Nr: 1627000
Decision Date: 07/07/16    Archive Date: 07/14/16

DOCKET NO.  12-02 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for essential tremors.

2.  Entitlement to service connection for bilateral hearing loss.

3.  Entitlement to service connection for a lumbar spine disability.

4.  Entitlement to service connection for obstructive sleep apnea.

5.  Entitlement to service connection for gastroesophageal reflux disease (GERD) with hiatal hernia.

6.  Entitlement to service connection for memory loss.

7.  Entitlement to service connection for a sleep impairment.

8.  Entitlement to service connection for erectile dysfunction.

9.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling.

10.  Entitlement to an increased rating for status post left knee reconstruction rated as 20 percent disabling prior to October 18, 2011, then as 30 percent disabling until December 26, 2012, from February 1, 2014, to February 20, 2015, from April 1, 2015, to April 20, 2015, and since June 1, 2015.

11.  Entitlement to an increased rating for left knee arthritis, rated as 10 percent disabling prior to December 26, 2012.

12.  Entitlement to an increased compensable rating for a scar of the left knee.

13.  Entitlement to an increased rating for right knee instability, rated as 20 percent disabling.

14.  Entitlement to an increased rating for right knee arthritis, rated as 20 percent disabling.

15.  Entitlement to an increased compensable rating for residuals of a fracture of the right ring finger.

16.  Entitlement to a temporary total rating based on hospitalization in excess of 21 days and treatment requiring convalescence for a service-connected disability.

17.  Entitlement to an increased compensable rating for bruxism.

18.  Entitlement to an increased rating for tinnitus, currently rated as 10 percent disabling.

19.  Entitlement to special monthly compensation (SMC) based upon housebound status other than for the period from December 26, 2012, to February 1, 2014.

20.  Entitlement to a total disability rating based upon individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Kenneth LaVan, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

R. Erdheim, Counsel

INTRODUCTION

The Veteran served on active duty from January 1987 to September 1993.

This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the RO in St. Petersburg, Florida.  The Veteran testified before the Board during this hearing in January 2016.

The issues of entitlement to an increased rating for left and right knee disabilities, a left knee scar, and a right ring finger disability, entitlement to service connection for obstructive sleep apnea and GERD with hiatal hernia, and entitlement to SMC and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  At his January 2016 hearing before the Board, the Veteran requested that his appeal with regard to the issues of entitlement to a temporary total rating based upon convalescence, entitlement to increased ratings for tinnitus and bruxism, and entitlement to service connection for bilateral hearing loss, memory loss, and a sleep impairment, be withdrawn.

2.  The competent, credible, and probative evidence of record is against a finding that the Veteran suffers from essential tremors caused or aggravated by his service.

3.  The Veteran's lumbar spine disability (lumbar strain) has been permanently aggravated by his service-connected right and left knee disabilities.

4.  The Veteran's erectile dysfunction has been permanently aggravated by his service-connected PTSD.

5.  Throughout the pendency of the appeal, the Veteran's PTSD has been manifested by occupational and social impairment essentially commensurate with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment due to PTSD has not been shown.

CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal regarding the issue of entitlement to a temporary total rating based upon convalescence have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

2.  The criteria for withdrawal of the appeal regarding the issue of entitlement to an increased rating for tinnitus have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

3.  The criteria for withdrawal of the appeal regarding the issue of entitlement to an increased rating for bruxism have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

4.  The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

5.  The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for memory loss have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

6.  The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for sleep impairment have been met.  38 U.S.C.A. � 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. � 20.204 (2015).

7.  The requirements for service connection for an essential tremor have not been met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304 (2015).

8.  The requirements for service connection for a lumbar spine disability have been met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309 (2015).

9.  The requirements for service connection for erectile dysfunction have been met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.303, 3.304 (2015).

10.  The criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. � 4.130, Diagnostic Code 9411 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. �� 20.202, 20.204(b).  Withdrawal may be made by the appellant or by his authorized representative, except that a representative may not withdraw a Substantive Appeal filed by the appellant personally without the express written consent of the appellant.  38 C.F.R. � 20.204(c).

At his January 2016 hearing, the Veteran stated that he no longer wished to pursue his perfected claims of entitlement to a temporary total rating based upon convalescence, entitlement to increased ratings for tinnitus and bruxism, and entitlement to service connection for bilateral hearing loss, memory loss, and a sleep impairment.  The Board finds that the Veteran's statement of intention to withdraw the appeal satisfies the requirements for the withdrawal of a substantive appeal.

As the Veteran has withdrawn his appeal as to the issues of entitlement to a temporary total rating based upon convalescence, entitlement to increased ratings for tinnitus and bruxism, and entitlement to service connection for bilateral hearing loss, memory loss, and a sleep impairment, there remain no allegations of errors of facts or law for appellate consideration concerning those issues.  The Board therefore has no jurisdiction to review the issues.

Accordingly, the issues of entitlement to a temporary total rating based upon convalescence, entitlement to increased ratings for tinnitus and bruxism, and entitlement to service connection for bilateral hearing loss, memory loss, and a sleep impairment are dismissed.

Notice and Assistance

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service Connection

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

Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. � 1112; 38 C.F.R. � 3.304.  See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Alternatively, service connection for certain chronic diseases may be established under 38 C.F.R. � 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. � 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112; 38 C.F.R. �� 3.307, 3.309.
Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. � 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

With regard to the Veteran's claim for service connection for essential tremors, the Board finds that the preponderance of the evidence is against the Veteran's claim, and it must be denied.

The Veteran contends that his tremors began while he was in service.  In support of his claim, he points to a July 1993 psychological consultation.  It was noted on that examination that as he described his service stressor, he would visibly "tremble, hands would shake and appeared shaken and agitated."  However, while the Veteran was noted to tremble at that time, the competent medical evidence is against a finding that such was a symptom of an essential tremor.  That notation was reviewed by the June 2015 VA examiner who concluded that the Veteran's tremble noted on 1993 psychological examination was rather a transient symptom that was associated with an emotional issue, not an essential tremor.  That conclusion was supported by the record.  The record demonstrates that the Veteran did not experience symptoms of an essential tremor until the early 2000s, over 8 years following service separation.  For instance, a December 1993 general VA examination was negative for reports of or a finding of a tremor.  The VA records further demonstrate that he was first seen in 2004 for a neurology consultation related to his tremor.  In 2006, the Veteran reported that he had first noted this problem four years earlier.  Then, in February 2010, the Veteran reported on neurology consultation that his tremor had begun 10 years earlier.  This evidence weighs heavily against the Veteran's claim, as it is apparent that from 2004 to 2010, he was obtaining treatment from the VA to treat symptoms of a tremor and not prior to that time.  Such is entirely inconsistent with his later claim for VA benefits, at which time he stated that his symptoms began in service.  Finally, in January 2011, a VA examiner concluded that there was no documented findings of tremors in service or for many years following service.  The examiner found it less likely than not that the Veteran's tremors were caused or aggravated by his service.

The Veteran has also contended that his tremors are due to an unexplained illness stemming from his service in the Persian Gulf.  However, on May 2012 VA examination, the examiner concluded that the Veteran's essential tremor had a partially explained etiology and was therefore less likely than not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia.  The examiner explained that half of essential tremor cases appeared to occur because of a genetic mutation, and was referred to as a familial tremor.  What causes an essential tremor in people with a known genetic mutations wasn't clear.  The examiner noted findings in the VA treatment records, showing that in 2010, the Veteran reported that his grandmother had Alzheimer's disease with tremors.  In this case, there is affirmative evidence that the Veteran's tremors did not have their onset in service and in fact began many years following service.  In light of the above, service connection pursuant to 38 C.F.R. � 3.317 is also not warranted.

While the Veteran is competent to state that he suffers from essential tremors, he is not competent to provide an opinion on a medical issue that requires medical expertise and knowledge.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007).  While the Veteran does have a medical education, he is not a medical doctor.  The Board places greater probative weight on the multiple VA examinations in this case, as they are thorough, supported by medical principles, and are consistent with the record.

With regard to the Veteran's claim for service connection for a lumbar spine disability, the Board finds that service connection on a secondary basis is warranted.  The Veteran contends that due to his right and left knee disabilities, he has had to change the way that he walks for many years, and that such change in his walk, posture, and general physique has caused or aggravated his lumbar spine disability.  On June 2015 VA examination, the examiner reviewed the file and physically examined the Veteran, concluding that the Veteran had progressively developed significant left knee dysfunction and a chronic antalgic gait.  That change in gait had shifted the biomechanical forces that deal with his ambulation and other spinal column activities, contributing to the paralumbar spasm that he objectively demonstrated.  When taking into account this positive medical evidence, and absent any competent evidence to the contrary, the Board finds that service connection for a lumbar strain is warranted.

With regard to the Veteran's claim for service connection for erectile dysfunction, on June 2015, a VA examiner reviewed the claims file and physically examined the Veteran, concluding that the Veteran's medication taken for his service-connected PTSD most likely aggravated his erectile dysfunction beyond its natural progression.  That conclusion was supported by the treatment records showing the Veteran's report in 2011 that his erectile dysfunction had worsened after commencing medication for his PTSD and that, in 2014, his Amitriptyline was "discontinued due to inefficacy and ED."  When taking into account this positive medical evidence, and absent any competent evidence to the contrary, the Board finds that service connection for erectile dysfunction is warranted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The  rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. � 4.7.

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's PTSD is currently rated as 70 percent disabling throughout the appeal period.

Under the criteria pertaining to PTSD, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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.

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.  38 U.S.C.A. � 4.130 DC 9411.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.

VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes.  VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014.  See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).

Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV.  The amendments replace those references with references to the recently updated DSM-5.  However, according to the DSM-5, clinicians do not typically assess GAF scores.  The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice.

In this case, the Board finds that a higher 100 percent rating is not warranted for the Veteran's PTSD at any time during the appeal period.  Specifically, VA treatment records and VA examinations do not reflect any symptoms contemplated by the 100 percent rating nor do they indicate that the symptoms the Veteran does experience result in total social and occupational impairment.  On November 2009 and October 2011 VA examinations, gross impairment in thought processes or communication, persistent delusions or hallucinations, gross 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, was not shown.  While the Veteran was shown on VA examination to suffer from irritability and nightmares, social avoidance, intrusive thoughts, and hypervigilence, those symptoms are contemplated by the current 70 percent rating and do not meet the severity of symptoms contemplated by the 100 percent rating.  Significantly, the Veteran has provided no testimony or statement as to symptoms that he experiences contemplated by the higher rating.  At his 2016 hearing, he provided limited testimony as to the current severity of his PTSD, and did not identify any symptom to suggest that his PTSD resulted in total social or occupational impairment.

From the above evidence, the Board concludes that a 100 percent rating is not warranted and that no further development with regard to this claim need be accomplished.  As the preponderance of the evidence is against the claim, the claim must be denied.

An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. � 3.321(b)(1).  The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability.

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected PTSD with the established criteria found in the rating schedule.  The discussion above reflects that the symptoms of the Veteran's PTSD as it is contemplated by the applicable rating criteria.  The competent medical evidence of record shows that the Veteran's PTSD has not resulted in total social and occupational impairment.  There is a higher rating available under the diagnostic code for PTSD, but the Veteran's PTSD is not productive of the manifestations that would warrant the higher rating.  The Veteran's disability is manifested by impairment in social and occupational functioning and the rating criteria contemplate these impairments.  The effects of the Veteran's disability has been fully considered and are contemplated in the rating schedule.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008)

ORDER

The issue of entitlement to a temporary total rating based upon convalescence is dismissed.

The issue of entitlement to an increased rating for tinnitus is dismissed.

The issue of entitlement to an increased rating for bruxism is dismissed.

The issue of entitlement to service connection for bilateral hearing loss is dismissed.

The issue of entitlement to service connection for memory loss is dismissed.

The issue of entitlement to service connection for sleep impairment is dismissed.

Service connection for essential tremors is denied.

Service connection for a lumbar spine disability is granted.

Service connection for erectile dysfunction is granted.

A rating in excess of 70 percent for PTSD is denied.

REMAND

Further development is necessary with regard to the issues of entitlement to an increased rating for left and right knee disabilities, a left knee scar, and a right ring finger disability, entitlement to service connection for obstructive sleep apnea and GERD with hiatal hernia, and entitlement to SMC and a TDIU.

At his January 2016 hearing, the Veteran reported that his right ring finger disability had worsened in severity over the previous years.  Because the most recent VA examination with regard to this disability was conducted in 2011, a new VA examination is necessary to decide the claim.

Concurrent with the Board's review of this claim, the RO has been developing a different service connection claim filed by the Veteran and in so doing obtained a VA examination with regard to the Veteran's right and left knee disabilities and their relation to any possible Gulf War illness.  Those examinations obtained sufficient information to readjudicate the Veteran's claims for increased ratings for the left and right knee disabilities and left knee scar, however, prior to further Board review, a supplemental statement of the case and any other pertinent development should be completed by the RO.

With regard to the Veteran's claim for service connection for GERD and for OSA, the Board finds that VA examinations and opinions are necessary.  VA examinations with regard to whether these conditions were as due to an undiagnosed illness have been obtained, however, opinions as to the theory of direct service connection have not yet been obtained.  In light of the Veteran's statements of service incurrence and symptoms since service, such examinations and opinions should be obtained on remand.

Finally, the Veteran's claims for SMC other than from December 26, 2012, to February 1, 2014, and for a TDIU, must be remanded pending adjudication of the above claims.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to assess the current severity of the Veteran's right ring finger disability.  The examiner should review the claims file and copies of all pertinent records.  The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible.  A full and well-reasoned rationale must be provided for all opinions reached.

2.  Schedule the Veteran for VA examinations to determine the etiology of his a) GERD with hiatal hernia and b) obstructive sleep apnea.  The claims file should be reviewed by the examiner.  The examiner is requested to provide the following opinions:

 a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current GERD with hiatal hernia was caused or aggravated by his service, to include due to the stress that he experienced in service?

b) Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current GERD with hiatal hernia was caused or permanently aggravated by his service-connected PTSD?

c)  Is it at least as likely as not (within the realm of 50 percent probability or greater) that the Veteran's current obstructive sleep apnea was caused or aggravated by his service, to include due to trouble sleeping in service as evidenced in his service treatment records?

3)  Then, readjudicate the claims for increased rating for left and right knee disabilities and a left knee scar to include consideration of the June 2016 VA examinations of the right and left knees, and a right ring finger disability, entitlement to service connection for obstructive sleep apnea and GERD with hiatal hernia, and entitlement to SMC and a TDIU.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Allow the appropriate time for response, then return the case to the Board.

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

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

______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: VICTORIA MOSHIASHWILI

condition: cancer

condition: respiratory

text:
Citation Nr: 1628000
Decision Date: 07/14/16    Archive Date: 07/28/16

DOCKET NO.  13-15 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for bilateral pes planus.

2.  Entitlement to service connection for residuals of prostate cancer with erectile dysfunction.

3.  Entitlement to service connection for bilateral carpal tunnel syndrome.

4.  Entitlement to service connection for acute sinusitis.

5.  Entitlement to service connection for residuals of a left ear cystectomy.

REPRESENTATION

Veteran represented by:  Disabled American Veterans

ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty with the Army from July 1983 to February 1987 and from September 2001 to June 2007.  This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  Initially, the Veteran had appealed a total of nine service connection claims that were denied, but the RO granted four of those claims in a March 2015 Hearing Officer Decision of the RO, leaving the remaining five issues for consideration by the Board.  It is also noted that in September 2013 the Veteran had requested a videoconference hearing to be conducted by a Veterans Law Judge, but after notification of a scheduled hearing, he withdrew his hearing request in July 2015.

FINDING OF FACT

Prior to the promulgation of a decision in the matter, the VA in July 2015 received written notification from the Veteran, expressing his intent to withdraw his appeal pertaining to entitlement to service connection for bilateral pes planus, residuals of prostate cancer with erectile dysfunction, bilateral carpal tunnel syndrome, acute sinusitis, and residuals of a left ear cystectomy; there is no question of fact or law remaining before the Board in these matters.

CONCLUSION OF LAW

Regarding the claims of entitlement to service connection for bilateral pes planus, residuals of prostate cancer with erectile dysfunction, bilateral carpal tunnel syndrome, acute sinusitis, and residuals of a left ear cystectomy, the criteria for withdrawal of an appeal by the Veteran are met; the Board has no further jurisdiction in these matters.  38 U.S.C.A. �� 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. �� 20.202, 20.204 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Although the VCAA applies to the instant claims, discussion of the impact of the VCAA is not necessary in light of the expression of the Veteran's intent to withdraw his appeal in these matters.

Legal Criteria, Factual Background, and Analysis

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. � 7104; 38 C.F.R. � 20.101.  Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. � 20.202.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. � 20.204.

In a written statement received by the VA in July 2015, the Veteran indicated that it was his intent to withdraw the issues on appeal concerning entitlement to service connection for bilateral pes planus, residuals of prostate cancer with erectile dysfunction, bilateral carpal tunnel syndrome, acute sinusitis, and residuals of a left ear cystectomy.  The Veteran's wishes were also repeated in a statement received in July 2015 from the Veteran's representative co-located with the RO in Los Angeles, which evidently was overlooked by the Veteran's representative located in Washington, DC, who submitted argument in May 2016.  Hence, there is no allegation of error of fact or law for appellate consideration on these claims.  Accordingly, the Board does not have jurisdiction to consider an appeal in these matters, and the appeal must be dismissed.

ORDER

The appeal seeking service connection for bilateral pes planus is dismissed.

The appeal seeking service connection for residuals of prostate cancer with erectile dysfunction is dismissed.

The appeal seeking service connection for bilateral carpal tunnel syndrome is dismissed.

The appeal seeking service connection for acute sinusitis is dismissed.

The appeal seeking service connection for residuals of a left ear cystectomy is dismissed.

____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: BETHANY L BUCK

condition: headache

text:
Citation Nr: 1629000
Decision Date: 07/20/16    Archive Date: 08/01/16

DOCKET NO.  10-08 377	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon

THE ISSUES

1.  Entitlement to increased disability ratings for migraine headaches, currently evaluated as 10 percent disabling for the period prior to March 22, 2012, and as 30 percent disabling for the period from March 22, 2012.

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel

INTRODUCTION

The Veteran served on active duty for twenty years in the U.S. Navy from March 1984 to February 2004.

These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision of the RO that, in pertinent part, denied a disability rating in excess of 10 percent for service-connected migraine headaches; and denied entitlement to a TDIU.  The Veteran timely appealed.

In March 2012, the Veteran testified during a hearing before the undersigned at the RO.

In January 2013, the Board remanded the matters for additional development.  In March 2013, VA's Appeals Management Center (AMC) increased the disability evaluation to 30 percent for migraine headaches, effective March 1, 2013.  Because higher evaluations are available for migraine headaches, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

In a December 2014 decision, the Board denied a disability evaluation in excess of 10 percent for the period prior to March 22, 2012, and granted a 30 percent disability evaluation for the period from March 22, 2012; and remanded the matter of entitlement to TDIU benefits for further development.

The Veteran appealed the December 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2015 Joint Motion for Partial Remand, the parties moved to vacate, in part, the Board decision, denying disability ratings for migraine headaches in excess of 10 percent prior to March 22, 2012, and in excess of 30 beginning March 22, 2012; and to remand the case to the Board.  The parties also moved the Court not to disturb the remainder of the Board's decision. The Court granted the motion.

The July 2015 supplemental statement of the case reflects that the criteria for TDIU are not established.

In January 2016, the Board remanded each of the matters on appeal for further development. In June 2016, the Veteran's appeal was returned to the Board's docket.

FINDINGS OF FACT

1.  For the appeal period prior to March 22, 2012, the Veteran's migraine headaches have included complaints of sensitivity to lights, and prostrating headaches reasonably controlled with medication; and did not occur as frequently as once a month or more over the last several months.

2.  For the appeal period from March 22, 2012, the Veteran's migraine headaches have been manifested by characteristic prostrating attacks averaging once a month or more over the last several months; very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability, have not been demonstrated.

3.  Service connection is in effect for degenerative disc disease at L4-L5 and L5-S1 of the lumbar spine, rated as 40 percent disabling; for migraine headaches, rated as 10 percent disabling prior to March 22, 2012, and as 30 percent thereafter; for dysthymia with anxiety, rated as 30 percent disabling from March 23, 2012; for tinnitus, rated as 10 percent disabling; for sciatica of the right lower extremity, rated as 10 percent disabling; for sciatica of the left lower extremity, rated as 10 percent disabling; and for hypertension, residual scar on scalp, and arachnoid cyst-each rated as 0 percent (noncompensable) disabling.  The combined disability rating is 60 percent from March 1, 2004; 70 percent from March 22, 2012; and 80 percent from March 23, 2012.

4.  The Veteran has not worked full-time since 2008; he reportedly has work experience as a computer technician.

5.  The combined effect of service-connected disabilities is not shown to be of such a nature or severity to prevent the Veteran from obtaining or retaining substantially gainful employment.

CONCLUSIONS OF LAW

1.  For the appeal period prior to March 22, 2012, the criteria for a disability rating in excess of 10 percent for migraine headaches are not met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2015).

2.  For the appeal period from March 22, 2012, the criteria for a disability rating in excess of 30 percent for migraine headaches are not met.  38 U.S.C.A. � 1155 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2015).

3.  The criteria for TDIU are not met.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b) (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2015).

VA's duty to notify was satisfied by June 2008 and August 2008 letters.  See 38 U.S.C.A. �� 5102, 5103, 5103A (West 2014); 38 C.F.R. � 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Each of the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Board concludes that VA's duty to assist has been satisfied.  All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The RO or AMC has obtained the Veteran's service treatment records, his outpatient treatment records, and vocational rehabilitation records; and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and appear adequate.  The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms.  The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.

During the hearing the undersigned clarified the issues, explained the concepts of increased ratings, and helped to identify any pertinent evidence that was outstanding that might substantiate the claims.  The case was thereafter remanded for additional development, including examinations.  The actions of the undersigned supplement VA's duties and comply with 38 C.F.R. � 3.103.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims.  38 U.S.C.A. � 5103A(a)(2).

II.  Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. � 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. � 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. � 4.21 (2015).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. � 5107(b) (West 2014); 38 C.F.R. � 4.3 (2015).

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. � 4.1.  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

On May 27, 2008, the Veteran filed a claim for a TDIU.

A.  Migraine Headaches

Service connection has been established for migraine headaches.  As noted above, a 10 percent disability rating has been assigned prior to March 22, 2012, and a 30 percent disability thereafter.

Pursuant to Diagnostic Code 8100, migraines with characteristic prostrating attacks averaging one in two months over the last several months shall be evaluated as 10 percent disabling.  Headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months shall be evaluated as 30 percent disabling, and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability shall be evaluated as 50 percent disabling.

Historically, the Veteran was diagnosed with migraine headaches in active service.  The report of VA examination in November 2003 shows complaints of migraine headaches which were frequent in nature, though not terribly disabling.  The Veteran reportedly took over-the-counter medications and got some relief from the headaches.  The assessment in March 2005 was history of migraine headaches, stable with prophylactic B-blocker therapy.

For the Appeal Period Prior to March 22, 2012

VA records show ongoing treatment for headaches throughout the appeal period.  During an October 2008 VA examination, the Veteran reported that after taking atenolol in 2003 for hypertension, his migraines decreased significantly; and that he currently took atenolol, which had been sufficient to keep his hypertension and migraines under control.  He reported having a mild headache once a month, but no prostrating headaches; and that he neither missed work due to his migraines, nor did his mild headaches interfere with his work.

In March 2009 and in April 2009, the Veteran requested stronger medication for migraines.  He reported having a more intense job, and the migraines now affected his job.

VA records show that the Veteran's headaches were somewhat controlled in June 2009.  In January 2010, a VA physician found that the Veteran's migraines were reasonably under control.  In April 2011, the Veteran reported having migraines once per week, although the severity was not indicated.

VA's vocational rehabilitation records show that the combination of the Veteran's service-connected disabilities created an employment handicap.  Specifically, the Veteran reported his physical limitations due to his back and sciatica disabilities as primarily interfering with his activities (lifting heavy objects, walking long distances, standing for any length of time. Records dated in May 2011, reveal that the Veteran had overcome an employment handicap, to the extent feasible; and had achieved the goals and objectives of the rehabilitation program.  Records show that he was employed in the occupational objective for which his program of services was provided.

The Board finds that the Veteran's symptoms do not meet the criteria for a disability rating in excess of 10 percent under the rating criteria.  The October 2008 examination noting no prostrating headaches. Although some treatment records have noted that the Veteran called the VA and complained about the severity of his headaches prior to March 22, 2012, these records did not indicate whether the headaches were prostrating or indicate the frequency of the headaches. While the Veteran required stronger medications for his headaches, the overall evidence reveals that the Veteran's migraine headaches were reasonably under control.  The evidence does not show that characteristic prostrating attacks have occurred on an average of once a month or more over the last several months during the applicable rating period.  Therefore, the Board finds that the evidence does not support a disability rating in excess of 10 percent prior to March 22, 2012.

For the Appeal Period from March 22, 2012

On March 22, 2012, the Veteran testified that he had an average of one headache per week; and testified that he had prostrating headaches about twice a month.

During a March 2013 VA examination, the Veteran reported migraine headaches occurring about once per week.  His migraines were severe and usually lasted a day.  He reported prostrating headaches occurring about three-to-four days per month and felt incapacitated by migraines.  He also reported some sensitivity to bright light, and almost always having some lesser degree of headache in the background-though it was not enough to impair him functionally.

Current symptoms in March 2013 included constant head pain, pain on both sides of head, pain worsened with physical activity, nausea, and sensitivity to light.  The March 2013 examiner indicated that the Veteran had characteristic prostrating attacks more frequently than once per month, though he had no prolonged attacks.  Although the Veteran was not currently employed, the March 2013 examiner indicated that the Veteran's headache condition would impact his ability to work.  For example, the Veteran would probably miss a few days monthly for severe headaches, or he would slow down or be distracted if he went to work.

Here, the Veteran has described having prostrating headache pain, and the March 2013 examiner diagnosed migraine headaches.  The evidence of record reveals that no more than the currently assigned 30 percent disability rating is warranted for migraine headaches during the applicable rating period.   38 C.F.R. � 4.124a, Diagnostic Code 8100.  In this regard, there is evidence of headaches with characteristic prostrating attacks occurring on an average of once a month or more over the last several months.  At no time, however, during the applicable rating period, does the evidence show that the Veteran had very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability, to warrant a disability rating in excess of 30 percent. While the Veteran reported feeling incapacitated at times due to migraines, prolonged attacks are not demonstrated during the applicable rating period.  Furthermore, the evidence does not confirm very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Occupational effects have been described as probably having to miss a few days a month for severe headaches, or being
slowed down and distracted if he did go to work. While this is in fact an impact, it is not considered productive of severe economic inadaptability, in which the Veteran is unable to work at all because of his headaches.  His symptoms do not warrant a disability rating in excess of 30 percent under Diagnostic Code 8100.  No other diagnostic code is applicable.

Finally, the potential application of 38 C.F.R. � 3.321(b)(1) has also been considered.  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule.  Thun v. Peake, 22 Vet. App. 111 (2008).

If the criteria reasonably describe the Veteran's disability level and symptoms, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, VA must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-i.e., a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id.

Here, the symptomatology and impairment caused by the Veteran's service-connected disability is specifically contemplated by the rating criteria.  Specifically, he has frequent and severe migraine headaches.  Examiners have noted the probability of some interference with work; any functional impairment is contemplated in the rating criteria for migraines.  There are no other ratable symptoms stemming from the disability that are not currently considered in the rating criteria.  Thus, the Board finds that the rating criteria adequately cover his symptoms.

In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the Board finds that the degree of disability throughout the rating periods under consideration is contemplated by the rating schedule; therefore, the assigned ratings are adequate. In the absence of exceptional factors associated with the disability (i.e., no frequent hospitalizations, no interference with work), the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. � 3.321(b)(1) are not met.  As such, referral for consideration for an extraschedular evaluation is not warranted.  See 38 C.F.R. � 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Finally, 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 disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (2014).  In this case, the Veteran is service-connected for degenerative disc disease of the lumbar spine, migraine headaches, dysthymia with anxiety, tinnitus, sciatica of each lower extremity, hypertension, residual scar on scalp, and an arachnoid cyst.  The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.

Further, there is no medical evidence indicating that the Veteran's migraine headaches combine or interact with his other service-connected disabilities in such a way as to result in further disabilities, functional impairment, or additional symptomatology not accounted for by the rating criteria applicable to each disability individually. 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.

For the foregoing reasons, the Board finds that the preponderance of the evidence is against a disability rating in excess of 10 percent for migraine headaches, for the appeal period prior to March 22, 2012; and is against a disability rating in excess of 30 percent for migraine headaches, for the appeal period from March 22, 2012.

B.  TDIU

Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability.  38 C.F.R. �� 3.340, 3.34l, 4.16(a).  In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered.  Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. � 3.341(a).

As noted above, VA received the Veteran's claim for a TDIU in May 2008.

In this case, the Veteran has completed four years of college education; and has had additional education and training in advanced electronics, radar systems, tomahawk weapon system, leadership training, and computer technician courses.  He reportedly last worked full-time in 2008.

Service connection is currently in effect for degenerative disc disease at L4-L5 and L5-S1 of the lumbar spine, rated as 40 percent disabling; for migraine headaches, rated as 10 percent disabling prior to March 22, 2012, and as 30 percent thereafter; for dysthymia with anxiety, rated as 30 percent disabling from March 23, 2012; for tinnitus, rated as 10 percent disabling; for sciatica of the right lower extremity, rated as 10 percent disabling; for sciatica of the left lower extremity, rated as 10 percent disabling; and for hypertension, residual scar on scalp, and arachnoid cyst-each rated as 0 percent (noncompensable) disabling.  The combined disability rating is 60 percent from March 1, 2004; 70 percent from March 22, 2012; and 80 percent from March 23, 2012.  Hence, the Veteran meets the threshold percentage requirements for consideration of a TDIU, for the appeal period from March 22, 2012.

Where the percentage requirements are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history.  See 38 C.F.R. � 4.16(b).

In this regard, the Board must determine whether the Veteran's service-connected disabilities render him unable to obtain and retain substantially gainful employment.

The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.

In August 2008, the Veteran contended that his service-connected lumbar spine disability contributed to his being fired.  The Veteran reported that his pain levels increased; and that he was unable to lift things, or to sit or stand long enough to do "customer service" or repairs.  The Veteran also reported that his arms became numb or tingly, and that he dropped things and had difficulty doing simple tasks.

In October 2008, a VA examiner opined that neither the Veteran's service-connected hypertension nor his service-connected residual scar on scalp would affect his employment in either physical or sedentary jobs.

In October 2008, the Veteran reported that he was not employed because employers would not hire him due to his disabilities.  He reported further degeneration of his spine, pain between his shoulder blades, arms that went numb and tingly, loss of feeling in both hands, pain in his legs, and a few migraines a month that "go full blown."

In March 2012, the Veteran testified that he tried different types of jobs, but that he lost his train of thought.  He occasionally would work in a class, though this was much less than part-time.  He testified that he wanted to work, but it took a toll on his body and he could not satisfy employers.

In March 2013, a VA examiner opined that the Veteran's service-connected lumbar spine disability made it difficult for him to stand for prolonged periods of time.  The VA examiner also noted that the Veteran's sciatica diagnosis was based on subjective history, and that there were no objective findings of radiculopathy on current examination.  The VA examiner found no tenderness across the lumbar spine or muscle spasm, and noted the Veteran's report that the pain was "deep" and not in the "soft tissues."

Also in March 2013, another VA examiner opined that the Veteran's service-connected migraine headaches would probably cause him to miss a few days monthly from work, or would slow down or distract him when at work.

Here, the Board finds that none of the VA examiners has described total occupational impairment due to the Veteran's service-connected disabilities.  That is evidence that must be considered.

The Veteran has asserted that he is unemployable due to his service-connected disabilities.  To this extent, his statement is of probative value.

Significantly, the Board finds that the Veteran's physical limitations due to his lumbar spine disability and sciatica have been corroborated by VA examiners.  The record further reflects disability due to migraine headaches, and his reports are credible.  However, there are no sedentary work restrictions.  The overall evidence does not demonstrate that the Veteran is unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities.

Ultimately, the Board places far more probative weight on the findings of VA examiners, who considered the Veteran's complaints and his work history, as well as the results of recent evaluations of his service-connected disabilities; and determined that the Veteran was not precluded from sedentary lines of work.  The Veteran is well-educated and has a variety of experience. There is no evidence of record that suggests sedentary employment, in which he would not have to lift heavy items or otherwise exert himself physically in such a way as to affect his back, would be precluded.  While the Board recognizes that the Veteran's prognosis for improvement remains guarded, the evidence does not support a finding of unemployability due to service-connected disabilities.

In this case, the objective evidence simply does not demonstrate that the Veteran is unable to obtain or retain substantially gainful employment solely because of his service-connected disabilities.  The Board concludes that the objective evidence outweighs the Veteran's lay assertions regarding unemployability.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt
doctrine is not applicable, and the claim is denied.  See 38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

ORDER

For the appeal period prior to March 22, 2012, a disability rating in excess of 10 percent for migraine headaches is denied.

For the appeal period from March 22, 2012, a disability rating in excess of 30 percent for migraine headaches is denied.

The claim of entitlement to a TDIU is denied.

____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: K A BANFIELD

text:
Citation Nr: 1630000
Decision Date: 07/27/16    Archive Date: 08/04/16

DOCKET NO.  11-26 202	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUES

1.  Entitlement to service connection for sleep apnea.

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

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel

INTRODUCTION

The Veteran served on active duty from February 1983 to April 1988 with additional service in the United States Air Force Reserve.

This appeal came before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2012, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge.  A transcript of the hearing is of record.  In a March 2016 letter, the Board informed the Veteran that the Acting Veterans Law Judge who presided at the October 2012 hearing was currently unavailable to participate in a decision in his appeal and informed him of his options for another Board hearing.  He was also informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing    and proceed accordingly.  The Veteran did not respond to the March 2016 letter.  Therefore, the Board will proceed to consider the Veteran's case on the evidence of record.

When this case was most recently before the Board in July 2013, it was remanded for further development and adjudicative action.

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

REMAND

While further delay is regrettable, the Board finds that additional development is required.

The Board notes that the Veteran was diagnosed with sleep apnea in November 2008.  As the Veteran had 13 days of active duty for training (ACDUTRA) from April 2008 to April 2009, development to determine whether the Veteran was on ACDUTRA in November 2008 is needed.

Regarding the Veteran's claimed low back disability, the Board notes that the August 2013 VA examiner found that the Veteran's current degenerative disc disease was "less likely" related to his active service, in significant part, because of a lack of documentation of complaints or treatment following discharge from active service.  Subsequent to that examination, the Veteran submitted treatment records from his chiropractor, noting treatment as early as December 2005.  Accordingly, an addendum opinion that addresses these records is necessary.

Relevant ongoing medical records should also be requested.  38 U.S.C.A. � 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED to the AOJ for the following actions:

1.  The AOJ should undertake appropriate development through official sources to attempt to verify whether the Veteran was on ACDUTRA in November 2008.  All actions should be documented in the claims file.

2.  Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have recently treated him for his back and sleep apnea.  After securing any necessary releases, the AOJ should request any relevant records identified.  If any requested records are unavailable, the Veteran should be notified of such.

3.  Return the claims file to the VA examiner who conducted the August 2013 examination, if available, to obtain an addendum opinion.  If that examiner is no longer available, the file should be provided to an examiner of similar or greater qualifications to obtain    the requested opinion.  If a new examination is deemed necessary to respond to the question presented, one should be scheduled.

Following review of the claims file, to include the results of the August 2013 examination, the examiner should indicate whether review of the chiropractic records showing treatment from 2005 to 2011 changes the conclusion that the low back disability is less likely as   not related to the Veteran's active duty service.  In addition, the examiner should address the November 2012 statement from the Veteran's chiropractor opining that the Veteran's back disability is as likely as not the result of repetitive stress caused by activities such as running and lifting while wearing heavy packs in the military.

4.  After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated.  If the benefits sought        on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.

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

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

_________________________________________________
K. A. BANFIELD
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) (2015).


judge_norm: VITO A CLEMENTI

benefit: education

text:
Citation Nr: 1632000
Decision Date: 08/11/16    Archive Date: 08/23/16

DOCKET NO. 14-28 368	)	DATE
	)
	)

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

THE ISSUE

Entitlement to an earlier commencing date for the award of Dependents' Educational Assistance (DEA) under Chapter 35 for the purposes of eligibility to retroactive payments.

ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel

INTRODUCTION

The Veteran had active service in the United States Army from November 1969 to June 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) Educational Center in St. Louis, Missouri.

FINDINGS OF FACT

1. The Veteran was awarded a 100 percent disability rating for service-connected disability in September 2012, with an effective date of award of benefits set to July 2009.

2. The appellant was a fulltime student at Marquette University between July 2009 and May 2010 (when she completed her undergraduate studies).

3. The appellant's application for DEA benefits was received in October 2013.

CONCLUSION OF LAW

The criteria for retroactive payment of DEA benefits have not been met as a matter of law. 38 U.S.C.A. �� 3512, 5113 (West 2014); 38 C.F.R. � 21.4131 (2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran's "permanent and total" disability rating allowed for basic eligibility to DEA for the appellant. The effective date of this award was set to July 2009, with the Veteran being notified of this rating in September 2012. The appellant had been a fulltime student at Marquette University in July 2009, and she has requested DEA assistance from July 2009 to May 2010 (when she received her undergraduate degree). She filed a claim for retroactive payment in October 2013.

Retroactive payment for DEA benefits may be awarded in certain circumstances. 38 U.S.C.A. �� 3512, 5113; 38 C.F.R. � 21.4131. Generally, DEA benefits are paid when an education program commences if a claim is received within one year of commencing an education program. 38 C.F.R. � 21.4131(d). An eligible person's application for DEA benefits will be considered as filed on his or her eligibility date if, among other requirements, the eligible person files an original application with VA within one year of the initial rating decision establishing eligibility to DEA.
38 C.F.R. � 21.4131(e)(2).

The appellant first filed her claim for benefits in October 2013, and was not in training at that time. The claim was thus for retroactive payments dating to 2009. The Veteran was notified of his 100 percent permanent and total rating in September 2012.

Had a claim been initiated prior to September 2013, VA could have accepted the claim as being filed on the eligibility date (which, if the appellant had elected, could be set to July 2009). However, her initial claim for benefits was filed more than one year after notification as to the initial rating decision awarding eligibility to DEA (in concert with the Veteran's permanent and total disability rating).

As a matter of law, the Board is prohibited from determining that the commencing date of DEA benefits began simultaneously with the establishment of eligibility to benefits.

The appellant has explained that she was unaware of her ability to file a claim for DEA upon the award of her father's permanent rating as she was allegedly, and erroneously advised that her attendance at a private university precluded the award of such benefits. There is no barrier to an award of benefits to students at a private institution, and if such information was erroneously passed to the appellant, it is unfortunate.

However, the Veteran was notified as to a permanent and total rating on September 12, 2012. The claim for DEA was received on October 3, 2013, and that is outside of one year from the date the initial rating was entered.

Essentially, this is a claim for equitable relief. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. �� 503,  7104; Harvey v. Brown, 6 Vet. App. 416 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426  (1990)].

The claim for retroactive benefits dating between 2009 and 2010 must be denied as a matter of law.

(ORDER ON NEXT PAGE)

ORDER

Entitlement to an earlier commencing date for the award of Dependents' Educational Assistance (DEA) under Chapter 35 for the purposes of eligibility to retroactive payments is denied.

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: MICHELLE L KANE

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

text:
Citation Nr: 1633000
Decision Date: 08/19/16    Archive Date: 08/26/16

DOCKET NO.  14-28 297	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in San Diego, California

THE ISSUES

1. Entitlement to service connection for a heart disorder (claimed heart attack).

2. Entitlement to service connection for cerebrovascular accident (stroke).

3. Entitlement to service connection for residuals of traumatic brain injury (TBI).

ATTORNEY FOR THE BOARD

G. Jackson, Counsel

INTRODUCTION

The Veteran served on active duty from March 1966 to January 1969. He received the Bronze Star, among other awards, for his service in Vietnam from January 1968 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the RO. The Veteran had initially requested a hearing before the Board, but in December 2014, he withdrew that request.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.

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

REMAND

In February 2016, the Veteran submitted a CD that purportedly contains records from the Riverside Community Hospital documenting treatment he received after suffering a heart attack in May 2010. A place holder in the electronic claims file indicates that the CD was blank. The Veteran was never notified, however, of the inability to scan these records. Because VA has been made aware of the existence of treatment records pertinent to the claims on appeal, another attempt must be made to obtain these records prior to appellate review.

Accordingly, the case is REMANDED for the following action:

1. Notify the Veteran that the CD of medical records previously submitted was blank. Request that he provide the names and addresses of any and all health care providers who have provided treatment for a heart disorder, cerebrovascular accident and TBI since he separated from service, to specifically include Riverside Community Hospital. Advise the Veteran to sign the appropriate authorization forms. Obtain and associate any outstanding pertinent records with the electronic claims file.

In the alternative, the Veteran can re-submit the records himself.

2. After completing all indicated development, readjudicate the claims on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response.

Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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).

_________________________________________________
MICHELLE L. KANE
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) (2015).