judge_norm: MICHAEL MARTIN

disposition: granted

condition: psychiatric

text:
��Citation Nr: 18105000

Decision Date: 05/23/18	Archive Date: 05/23/18

DOCKET NO. 13-20 481

DATE:	May 23, 2018

ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.

FINDING OF FACT

The Veteran s acquired psychiatric disorder had its onset during his first period of active duty service.

CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder are met.  38 U.S.C. ��  1131, 5107(b); 38 C.F.R. �� 3.102, 3.303(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1976 to July 1980 and from October 1980 to June 1985.  The latter period of service was found in an administrative decision of December 2009 to have been terminated with a discharge that was of a character such that VA benefits were precluded based on that period.

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. �� 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Because the Board is granting the Veteran s claim for entitlement to service connection for an acquired psychiatric disorder, any error committed with respect to either the duty to notify or the duty to assist is harmless and will not be further discussed.

1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, generalized anxiety disorder, panic disorder, and recurrent depressive disorder.

The Veteran contends that he has an acquired psychiatric disorder which began during service.  He alleges that he began experiencing depression during service, which is evidenced by his poor performance during his second period of active duty service and which resulted in a Special Court Martial and administrative leave separation.

The evidence demonstrates that the Veteran has a current diagnosis of bipolar disorder that began during active service.  38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

VA treatment records show that the Veteran has a current diagnosis of bipolar disorder, which was first definitively diagnosed in October 2004.  In June 2012, a VA psychologist opined that it was more likely than not that the Veteran s bipolar disorder had its onset during military service.  The rationale was that the Veteran first experienced symptoms of depression during active duty service, and was disciplined for behaviors associated with depression. The examiner stated that the Veteran  has suffered from onset of symptoms of a mood disorder since beginning his military service.  His symptoms worsened during his second period of service, and the Veteran began self-medicating with alcohol.  Thereafter, he became so depressed that he abandoned his position and spent a week drinking alcohol in a hotel to relieve dysphoria.  He was cited for several unauthorized absences and was subsequently court martialed and then discharged without any psychiatric intervention.  The examiner stated that  In my opinion, it is more likely than not that this Veteran experienced significant stressors during his military service which resulted in the onset of lifelong bipolar mood disorder.

The psychologist stated that  if [the Veteran] had been referred for an evaluation by a psychiatrist during his active duty, his change in behavior would have been identified and diagnosed as consistent with a mood disorder.   The psychologist noted that the opinion was based upon a review of the Veteran s military service records as well as the Veteran s lay statements during a 120 minute evaluation.  Additionally, in May 2012, a VA psychiatrist noted the Veteran s belief that his bipolar disorder had its onset in late 1979 (during his first period of military service).  The psychiatrist opined that there was  no reason to question his assessment about this, as he gave credible information about the symptoms that he had at that time.

Although the Veteran s service treatment records are silent as to any complaints of or treatment for depression or bipolar disorder during either period of his active duty service, the Veteran s service personnel records demonstrate a myriad of disciplinary problems and a decrease in performance most evident in his second period of active duty service.  In March 1982, the Veteran appeared in Municipal Court for charges of disturbing the peace and under the influence of alcohol or drugs.  He pleaded guilty.  He engaged in unauthorized absences from October 31, 1983 to March 14, 1984, from January 21, 1985 to February 15, 1985, and from February 20, 1985 to March 6, 1985.  In October 1984, he was convicted by Special Court Martial of charges of unauthorized absence for 135 days.  He began a fourth period of unauthorized absence on June 11, 1985, prior to separation.  The Veteran has provided lay statements that he experienced depression during service, and began drinking alcohol to self-medicate his depressive symptoms, resulting in unauthorized absences.  In his September 2013 substantive appeal, the Veteran explained that he began experiencing severe depression during service upon the death of a beloved family member, and that the condition was so severe that he began self-medicating which led to disciplinary problems during his second period of enlistment.  Additionally, the June 2012 VA opinion cited the Veteran s service records as evidence in support of the conclusion that the Veteran s  lifelong bipolar mood disorder  had its onset during his military service.  Although the second period of service was terminated with a discharge of a character that precludes VA benefits based on disability incurred or aggravated during that period, the Board may nevertheless consider the problems noted in the service records from the second period of service as being indicative of the incurrence of a psychiatric disorder during the first period of service.

The only medical evidence of record addressing the etiology of the Veteran s acquired psychiatric disorder are the May 2012 and June 2012 VA opinions, which both conclude that the Veteran s bipolar disorder had its onset during the first period of military service.  As the June 2012 VA opinion is based upon an interview of the Veteran and a review of pertinent service records, and provides adequate supporting rationale, the Board affords the June 2012 opinion significant probative value.  In the absence of any evidence to the contrary, and with consideration of all of the pertinent evidence of record, the Board concludes that the preponderance of the evidence supports a finding that the Veteran s acquired psychiatric disorder had its onset during qualifying military service.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	M. Katz, Counsel


series: legacy

judge_role: Veterans Law Judge

disposition: remanded

text:
��Citation Nr: 18106000

Decision Date: 05/30/18	Archive Date: 05/29/18

DOCKET NO. 12-02 114

DATE:	May 30, 2018

REMANDED

Entitlement to service connection for a bilateral hand disorder, claimed as bilateral carpal tunnel syndrome, trigger fingers, and degenerative joint disease (DJD), is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1976 to December 1980.  This matter comes to the Board of Veterans  Appeals (Board) on appeal from an October 2010 rating decision.  In May 2013, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) at the RO.

In June 2014, the Board remanded this matter for additional development.  In a December 2014 decision, the Board denied the Veteran s claim for service connection for bilateral carpal tunnel syndrome and trigger fingers.  The Veteran thereafter appealed the Board s decision to the U. S. Court of Appeals for Veterans Claims (Court).  In a July 2015 Order, the Court granted a Joint Motion for Remand (JMR), vacated the December 2014 Board decision, and remanded the matter for readjudication consistent with the JMR.

In October 2015, the Board again remanded this matter for additional development.  In an August 2016 decision, the Board denied the Veteran s claim for service connection for a bilateral hand disorder.  The Veteran thereafter appealed the Board s decision to the Court.  In an August 2017 Memorandum Decision, the Court vacated the Board s August 2016 decision, and remanded this matter to the Board for proceedings consistent with the Court s decision.

1. Entitlement to service connection for a bilateral hand disorder, claimed as bilateral carpal tunnel syndrome, trigger fingers, and DJD, is remanded.

In the August 2017 Memorandum Decision, the Court found that the reasons and bases for the Board s August 2016 decision were inadequate.  The Court indicated that the Board failed to consider and discuss all potentially applicable provisions of law and regulation, to include continuity of symptomatology for arthritis under 38 C.F.R. � 3.303(b) as well as post-service diagnosis under 38 C.F.R. � 3.303(d).  It was further noted that the Board failed to account for material evidence favorable to the Veteran.  For instance, the Court highlighted that the Board did not account for the Veteran s May 2013 Board hearing testimony that during cold weather training in Alaska there were no medical personnel in the field, soldiers were taught to self-treat cold injuries, and a fellow servicemember performed such treatment for him when he incurred the claimed cold injury to his hands.  The Court then noted that the Veteran s testimony constituted material evidence that was potentially favorable to his claim, as it explained the absence of records of in-service treatment for a cold injury to the hands and refuted the negative inferences that the VA examiner who provided the November 2015 and January 2016 addendum medical opinions drew from the absence of such records.

Pursuant to the Court s August 2017 Memorandum Decision and based on the cumulative evidence of record, to include the inadequacies in the VA examination reports and medical opinions of record, the Board finds that a VA medical opinion clarifying the etiology of the Veteran s claimed hand disorders is necessary to effectively adjudicate the service connection claim on appeal.

Updated VA treatment records from the Atlanta VAMC and East Point CBOC dated since May 2016 should be obtained and associated with the electronic claims file.  38 U.S.C. � 5103A(c) (2012); 38 C.F.R. � 3.159(c)(2) (2017); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record).

The matter is REMANDED for the following actions:

1.  Obtain updated treatment records pertaining to the Veteran s claimed bilateral hand disorders from Atlanta VAMC and East Point CBOC from May 2016 to the present.

2.  Obtain an addendum opinion from an appropriate clinician regarding whether any previously or currently diagnosed bilateral hand disorder, to include bilateral carpal tunnel syndrome, trigger fingers, and DJD, was at least as likely as not (50 percent probability or greater) incurred during or causally related to the Veteran s active service, to include the asserted in-service events, duties, and injuries.  A VA examination should be provided if deemed necessary by the examiner.  The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the electronic claims file has been reviewed.

In so doing, the examiner must discuss, acknowledge, and fully consider the Veteran s lay assertions of experiencing bilateral hand symptomatology during and since service.  In written statements of record and during the May 2013 Board videoconference hearing, the Veteran has asserted that his claimed hand disorder, to include bilateral carpal tunnel syndrome, trigger fingers, and DJD, began in service.  He has asserted that they resulted from cold weather injuries during field training in Alaska and Germany.  The Veteran has also contended that his claimed hand disorders were the result of his in-service duties as a Cannon Crewman (working with explosives, cannons, and a lot of manual work with his hands).  He contended that he kept hurting and repetitively hitting his hands throughout service and that he developed a left wrist cyst during service.  The examiner should also specifically discuss and consider the Veteran s May 2013 hearing testimony that during cold weather training in Alaska there were no medical personnel in the field, soldiers were taught to self-treat cold injuries, and a fellow servicemember performed such treatment for him when he incurred the claimed cold injury to his hands.

For purposes of the requested opinion, the examiner must consider the Veteran s statements concerning the description of the severity of the in-service injuries and duties as well as experiencing bilateral hand symptomatology during and since service.  The examiner is reminded that the absence of in-service documentation of the claimed hand disorder is not considered adequate rationale concerning etiology of the claimed hand disorder.  Simply stated, the examiner should not solely rely on an absence of corroborating in-service treatment records as to the severity of the in-service injuries and ensuing treatment, in determining whether the Veteran s current bilateral hand disorder was at least as likely as not (50 percent probability or greater) causally related to his military service.

The examiner should also reconcile the findings in the December 2012 VA examination report, the July 2014 VA examination addendum report, and the November 2015 and January 2016 VA medical opinions with the proffered medical opinion.  In providing this additional opinion, the examiner should also discuss medically known or theoretical causes of any current hand disorder and describe how such a disorder generally presents or develops in most cases, in determining the likelihood that the current disorder is related to in-service events as opposed to some other cause.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).  The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim.  38 C.F.R. � 3.655 (2017).

3.  After completing the above actions, and any other necessary development, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the record since the February 2016 supplemental statement of the case.  If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	J. D. Deane, Counsel


judge_norm: MICHAEL E KILCOYNE

disposition: dismissed

text:
��Citation Nr: 18107000

Decision Date: 06/01/18	Archive Date: 05/31/18

DOCKET NO. 15-14 198

DATE:	June 1, 2018

ORDER

Entitlement to service connection for obstructive sleep apnea (OSA) is denied.

Entitlement to a rating of 30 percent, but no greater, for coronary artery disease (CAD) is granted.

The appeal as to the issue of entitlement to a compensable rating for residual scar associated with CAD status post left saphenous vein harvest site is dismissed.

FINDINGS OF FACT

1. The Veteran s obstructive sleep apnea did not have its onset in service nor is it related to an injury or disease that occurred during service.

2. The Veteran s heart disability is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; as well as evidence of cardiac hypertrophy.

3. The Veteran s heart disability is not productive of more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

4. During his April 2017 Board hearing, the Veteran withdrew his claim for entitlement to a compensable rating for residual scar associated with CAD status post left saphenous vein harvest site, prior to the promulgation of a decision in the appeal.

CONCLUSIONS OF LAW

1. The Veteran s obstructive sleep apnea was not incurred in or aggravated by active service. 38 U.S.C. �� 1101, 1110, 1131, 1154, 5103, 5103A, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.159, 3.303 (2017).

2. The criteria for a schedular rating of 30 percent, but no greater, for CAD for the entire appeal period have been met. 38 U.S.C. �� 1155, 5107(b) (2012); 38 C.F.R. �� 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017).

3. The criteria are met for withdrawal of the Veteran s substantive appeal concerning an increased rating for residual scar associated with CAD status post left saphenous vein harvest site. 38 U.S.C. � 7105 (2012); 38 C.F.R. � 20.204 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1962 to March 1964, April 1964 to April 1970, and May 1970 until February 1985.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from August 2011 and October 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in April 2017.  A transcript of the hearing has been associated with the file.

1. Entitlement to service connection for sleep apnea

The Veteran contends that his obstructive sleep apnea occurred in service.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  To establish service connection, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  The Board concludes that, while the Veteran has a diagnosis of obstructive sleep apnea, and evidence shows that he complained of difficulty sleeping in service, the preponderance of the evidence is against finding that the Veteran s diagnosis of obstructive sleep apnea began during service or is otherwise related to an in-service injury or disease.  38 U.S.C. �� 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a), (d) (2017).

Private treatment records show the Veteran was not diagnosed with sleep apnea until January 2011, 26 years after his separation from service.  While the Veteran is competent to report having experienced symptoms of difficulty sleeping, gasping for breath, and tiredness consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sleep apnea.  The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).

The record contains conflicting medical opinions regarding whether the Veteran s obstructive sleep apnea at least as likely as not had its onset in service or is otherwise related to an in-service injury or disease.

The September 2012 VA examiner provided a negative nexus opinion.  The rationale was that the Veteran s difficulty sleeping in service was most likely the result of his chronic worrying and occasional depression.  The examiner found  insufficient evidence to provide for a nexus for the veterans claimed sleep apnea as being incurred in or caused by in service sleep problems.   The VA examiner s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

A January 2014 opinion set out in a VA outpatient treatment record provided a positive nexus.  The physician stated,  we feel it is more likely than not that the patient had OSA since the time he was in active duty.   This opinion is, however, less probative than the 2012 VA examiner s opinion.  It is simply a conclusion, with no supporting rationale.

Consequently, the Board gives more probative weight to the September 2012 VA examiner s opinion.

The Veteran and his wife testified at an April 2017 hearing that his sleeping problems began five to six years into his service.  His wife, whom he married in service, claims that he snores and gasps for breath while sleeping.  However, she did not say when those symptoms began.  The Veteran s wife submitted an August 2012 statement stating that  [a]ll through our marriage, he has not been able to get restful sleep.  He always wakes with no energy and has no interest in doing anything.   The Veteran s daughter submitted a letter in support of her father s claim stating that [a]s far back as I can remember, my dad has always snored and has always been tired.   The Veteran, his wife, and his daughter are all competent and credible as to the symptoms they have observed.

While the Veteran, his wife, and daughter believe the Veteran s sleep apnea is related to service, including his snoring and tiredness, they are not competent to provide a nexus opinion in this case.  Consequently, the Board gives more probative weight to the VA examiner who stated that there was insufficient evidence to link the Veteran s in-service sleeping problems with his current diagnosis of sleep apnea.

2. Entitlement to a rating in excess of 10 percent for coronary artery disease (CAD)

Increased Rating

The Veteran contends that he is entitled to a higher disability rating for his CAD.  In an August 2011 rating decision, the RO retroactively granted service connection for CAD due to the Veteran s documented service in Vietnam during the Vietnam war.  The RO granted a 30 percent rating effective August 1995.  In the same rating the RO granted a temporary 100 percent rating effective May 2010, following the Veteran s bypass surgery.  From September 2010 the Veteran was granted a 10 percent rating.  The Veteran specifically appealed his rating of 10 percent from September 2010 onward.  See March 2012 Notice of Disagreement, April 2017 hearing transcript at 16.  As such, the period on appeal is from September 2010 onward.

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. � 1155 (2012); 38 C.F.R. � 4.130 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. � 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. � 4.3 (2017).

The Veteran s entire history is to be considered when making disability evaluations. 38 C.F.R. � 4.1 (2017). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

The Veteran s CAD is evaluated pursuant to 38 C.F.R. � 4.104, Diagnostic Code (DC) 7005. This DC evaluates coronary artery disease.  A 10 percent rating is assigned when workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication has been required. A 30 percent rating is assigned when workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year, or; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or; when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. � 4.104, DC 7005. The criteria for coronary bypass surgery under DC 7017 are identical to those outlined in the DC for CAD with the inclusion of a 100% rating for the three months following the surgery.

Considering the pertinent evidence of record and in light of the law to afford the Veteran the benefit of the doubt, the Board finds that a 30 percent rating, but no greater, is warranted for the entire appeal period.

The record reflects that the VA examiner in May 2017 determined the Veteran s METs level to be greater than 5 and not greater than 7 with symptoms of dyspnea.  The examiner also concluded that there was evidence of cardiac hypertrophy as determined through an echocardiogram from May 2015.

A different VA examiner in March 2011 determined that there was no evidence of cardiac hypertrophy or dilatation as of March 2010.  The examiner did not give a METs score but noted that in January 2010 left ventricular ejection fraction was measured at 60-65 percent.  The Board notes that both of these results are prior to the Veteran s May 2010 bypass surgery and are thus not probative in determining the Veteran s cardiac function post bypass surgery.

The Veteran testified that he gets tired with exertion through activities such as yard work and weeding.  See April 2017 hearing transcript.  As noted by the May 2017 VA examiner, this is consistent with a METs level between 5 and 7.

A rating in excess of 30 percent is not warranted.  In order for a rating of 60 percent to be assigned the Veteran must have had more than one episode of acute congestive heart failure in the past year, or; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  The May 2017 VA exam measured METs to be greater than 5 but not greater than 7, showed left ventricular dysfunction with an ejection fraction of 60-65 percent, and denied any congestive heart failure.  Thus, the Veteran's symptoms more closely approximate the 30 percent rating than the 60 percent rating.

The VA examiner also noted that the Veteran did not have any chronic congestive heart failure.  This, combined with his METs level and ejection fraction, precludes assigning a 100 percent rating for any period of the appeal.

3. The appeal as to entitlement to a compensable rating for residual scar associated with CAD status post left saphenous vein harvest site is dismissed

During his April 2017 Board hearing, the Veteran withdrew his appeal for an increased rating for residual scar associated with CAD status post left saphenous vein harvest site. According to 38 C.F.R. � 20.204, only a Veteran or their representative may withdraw an appeal and they may do so on the record.  The Veteran s representative withdrew the claim for the scar on the record at the hearing.

When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. See 38 U.S.C. � 7105(d).

Accordingly, further action by the Board concerning the claim of entitlement to an increased rating for residual scar associated with CAD status post left saphenous vein harvest site is not warranted, and the appeal of this claim is dismissed.

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	Jason E. Uller, Associate Counsel


judge_norm: K MILLIKAN

condition: ptsd

text:
��Citation Nr: 18108000

Decision Date: 06/04/18	Archive Date: 06/03/18

DOCKET NO. 14-26 650

DATE:	June 4, 2018

REMANDED

Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), dysthymic disorder, personality disorder, anxiety, and depression is remanded.

REASONS FOR REMAND

The Veteran had active service from June 1984 to April 1987 and from March 1988 to March 1992.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision of the Department of Veterans Affairs (VA), in the Detroit, Michigan, Regional Office (RO).

In August 2017, the Veteran appeared at a Board hearing via videoconference before the undersigned Veterans Law Judge.

Entitlement to service connection for psychiatric disorder, to include PTSD, dysthymic disorder, personality disorder, anxiety, and depression.

Remand is required to obtain an adequate VA examination.

The Veteran asserts several incidents occurred during service that caused his psychiatric disorder.  Notably, April 1991 service treatment records document a diagnosis of major depression, single episode.  The Veteran was provided mediation and put on quarters.

Post-service discharge records note diagnoses of PTSD, personality disorder not otherwise specified, generalized anxiety disorder, major depressive disorder, and dysthymic disorder.  Notably, an April 1995 treatment record diagnosed depression/anxiety disorder.

In a September 2009 VA examination, the diagnosis was anxiety disorder not otherwise specified.  Upon review of the evidence of record, the VA examiner opined that the anxiety disorder was not caused by the Veteran s service related experiences.  No explanation was provided; the Board finds this examination inadequate.

The Veteran underwent another VA psychiatric examination in August 2010.  The examiner diagnosed anxiety disorder not otherwise specified and did not diagnose PTSD finding that the Veteran s  symptoms are better explained by another disorder.   The VA examiner provided a negative nexus opinion without any supporting explanation; the Board finds this examination inadequate.

Several private physician letters are associated with the claims file.  Although these letters suggest that the Veteran s generalized anxiety disorder began during service, they do not indicate the basis for these opinions.

The matter is REMANDED for the following action:

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

2.  Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  After any additional records are associated with the claims file, schedule the Veteran for a VA psychiatric examination with an appropriate examiner.  The entire claims file must be made available to the examiner.  A detailed history of relevant symptoms should be obtained from the Veteran.  All indicated studies should be performed.  An explanation for all opinions and a discussion of the facts and medical principles involved should be provided.  The examiner must address the following:

a)	Identify all psychiatric disorders that have been present since the Veteran filed his claim.

b)	To the extent that a personality disorder is currently diagnosed, determine whether it was subjected to a superimposed disease or injury in service that results in a current psychiatric disorder.

c)	Provide an opinion as to whether each psychiatric disorder at least as likely as not (a 50% or more probability) had its onset in service or is otherwise related to service, to include the incidents he has reported.

d)	With regard to PTSD, the examiner must indicate whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied.  The examiner must specifically indicate whether the Veteran has PTSD. If a PTSD diagnosis is deemed appropriate, the examiner must then comment upon the link between the current symptomatology and any in-service stressor, including the claimed personal assault.

The examiner must address the alleged incidents:  1) May 1980 incident while at Darmstadt West Germany; 2) Fort Carson downed aircraft; 3) Spring 1989 incident where a gun was pointed at the Veteran; and 4) a June 1990 incident that occurred while pouring a foundation.

The examiner must address the prior VA examinations, the 1995 private diagnosis of depression/anxiety disorder, the private provider letters, and the Veteran s lay statements.

4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. �� 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

5.  Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

K. MILLIKAN

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	H. Yoo, Counsel


judge_norm: B MULLINS

disposition: denied

text:
��Citation Nr: 18109000

Decision Date: 06/07/18	Archive Date: 06/06/18

DOCKET NO. 14-33 215

DATE:	June 7, 2018

ORDER

The claim of entitlement to service connection for bilateral hearing loss is denied.

The claim of entitlement to service connection for tinnitus is denied.

The claim of entitlement to service connection for a respiratory disability, to include pneumonia and bronchitis, due to exposure to test agents used during Project SHAD, is denied.

FINDINGS OF FACT

1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss for VA purposes.

2. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury, event, or disease.

3. The preponderance of the evidence is against finding that a respiratory disability began during active service, or is otherwise related to an in-service injury, event, or disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. �� 1110, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.303(a) (2017).

2. The criteria for service connection for tinnitus have not been met.  38 U.S.C. �� 1110, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.303(a) (2017).

3. The criteria for service connection for a respiratory disability have not been met.  38 U.S.C. �� 1110, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.303(a) (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active duty service with the United States Navy from June 1960 to June 1964.

Service Connection

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service.  38 U.S.C. �� 1110 (2012).  A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ( nexus ) between the present disability and the in-service event, injury, or disease.  38 C.F.R. � 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. �� 1101, 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.

Hearing loss and tinnitus are  chronic diseases  listed under 38 C.F.R. � 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. � 3.303 (b) based on  chronic  symptoms in service and  continuous  symptoms since service are applicable to this service connection claim.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. � 3.303 (b).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. � 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. � 5107 (b); 38 C.F.R. � 3.102.

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

1. The claim of entitlement to service connection for bilateral hearing loss

The Veteran contends that he is entitled to service connection for bilateral hearing loss.

Impaired hearing is considered a disability for VA purposes 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.  Further, the threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  When audiometric test results at a veteran s separation from service do not meet the regulatory requirements for establishing a  disability  at that time, he may nevertheless establish service connection for hearing loss by submitting evidence that the current disability is causally related to service.  Hensley, 5 Vet. App. at 160.

The Veteran s May 1960 enlistment examination evaluated his hearing using whisper testing, which was found to be within normal limits.  In June 1960, the Veteran underwent an in-service audiogram, and pure tone thresholds, in decibels, were as follows:

 	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	0	0	5	0	10

LEFT	0	0	0	0	10

In October 1962, the Veteran underwent an examination for an extension of his enlistment.  Whisper testing conducted with that examination also found his hearing to be within normal limits.  The Veteran s June 1964 separation examination similarly utilized whisper testing, and found his hearing within normal limits.

In July 2012, the Veteran underwent a VA examination to determine the etiology of his claimed hearing loss.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:

 	 	 	HERTZ

 	500	1000	2000	3000	4000

RIGHT	10	10	10	15	25

LEFT	15	10	10	15	25

Speech audiometry revealed speech recognition ability of 96 percent in both ears.  The average pure tone threshold was 15 in both ears.  The Veteran was found to have normal hearing in the left ear, and sensorineural hearing loss in higher frequencies in the right ear, but such hearing loss did not meet the criteria to be considered a disability for VA purposes.  The examiner determined that the Veteran s hearing was functionally normal.  Due to the quality of his hearing almost five decades after service, the examiner concluded that any hearing loss experienced was less likely as not due to active duty service.

The preponderance of the medical evidence of record does not reflect a diagnosis of hearing loss for VA purposes.  While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, there is no evidence of record to suggest that he is medically qualified to prove a matter requiring medical expertise.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The diagnosis of bilateral hearing loss is a complex medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Medical evidence of record has not established a diagnosis of bilateral hearing loss for VA purposes, nor a nexus between his purported hearing loss and qualifying service.  The Veteran similarly has not reported undergoing audiological examinations that might support his contention.  While he reports symptoms of hearing loss decades after discharge, all measurements of hearing acuity in-service were within normal limits.  Thus, although the Board has carefully considered the lay contentions of record, the Board ultimately affords the objective evidence of record more significant probative weight, which weighs against finding a diagnosis of bilateral hearing loss for VA purposes that is etiologically related to his active duty service.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for bilateral hearing loss must be denied.  See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

2. The claim of entitlement to service connection for tinnitus

The Veteran contends that he is entitled to service connection for tinnitus.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a), (d).

In a July 2012 opinion and a February 2017 clarifying addendum opinion, the July 2012 VA examiner opined that the Veteran s tinnitus is not at least as likely as not related to an in-service injury, event, or disease.  The rationale was that the Veteran reported an onset of tinnitus approximately 20 years before the July 2012 examination, which would indicate onset around 1990.  This timeframe was still over two decades after service.  The Institute of Medicine states,  ...as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.  No longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure.  The (IOM) committee s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.   Accordingly, the Veteran s tinnitus was less likely than not caused by or a result of active duty service, including military noise exposure.  The examiner s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Consequently, the Board gives more probative weight to the July 2012 VA examiner s opinion.

While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including military noise exposure, he is not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires knowledge of medical principals outside of the common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  While lay statements may be sufficient in of themselves to establish onset of tinnitus, the Veteran himself has reported that the condition began decades after service.  Consequently, the Board gives more probative weight to July 2012 examiner s opinion and subsequent addendum.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for tinnitus must be denied.  See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

3. The claim of entitlement to service connection for a respiratory disability, to include pneumonia and bronchitis, due to exposure to test agents used during Project SHAD, is denied.

The Veteran contends that he is entitled to service connection for a respiratory disability.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran has a current diagnosis of asthma with a history of pneumonia, and evidence shows that he worked on Project SHAD, which involved the testing of various chemical and biological agents, the preponderance of the evidence weighs against finding that the Veteran s respiratory disability began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a), (d).

In June 2011, a chest x-ray showed a subtle right basilar atelectasis, but no infiltrate or consolidation was suggested.  In June 2014, private treatment records reflect a diagnosis of asthma with a family history of asthma.  The physician reported that the condition could not necessarily be attributed to his military service due to this family history.  There was one calcified pleural plaque in his chest, which indicated asbestosis but was not definite for asbestosis.

The Veteran underwent a VA examination in June 2012, and an addendum to the examination was provided in February 2017.  Both opinions denied an etiological relationship between the Veteran s respiratory disability and active duty service.  In order to obtain a more thorough opinion on the issue, the Board subsequently requested an outside medical opinion regarding its etiology.

In December 2017, a new examiner determined that the Veteran s respiratory disability, likely diagnosed as asthma, was less likely than not related to service.  The examiner provided a thorough history of the Veteran s health through active duty service.  The examiner noted that the Veteran s yearly chest radiographs were all read as either normal or negative for any abnormality.  He was treated for acute tonsillitis and a common cold in service, but reported no other pulmonary symptoms.  Accordingly, the examiner concluded that it was highly unlikely that the Veteran had any significant acute or chronic pulmonary issues during active duty service.

Due to the nature of the chemical and biological agents involved in Project SHAD, exposure would cause acute symptoms, and only infrequently caused chronic symptoms related to the exposure.  As the Veteran did not have any documented acute manifestations of toxicity during active duty service, it was highly unlikely that his exposure to any or all of the agents used in Project SHAD had any bearing on his diagnosis of cough, asthma or bronchitis many decades after service.  The examiner also concluded that an episode of pneumonia in 1999, and the June 2011 chest x-ray finding of subtle right basilar atelectasis was less likely to be related to his service.  Instead, the findings were highly likely to be related to his underlying complaints of cough and congestion for four weeks at that time.  Given the Veteran s normal radiographs in service, these findings were extremely unlikely to be related to active duty.  In sum, the examiner reported that it was more likely as not that the Veteran had a present clinical diagnosis of asthma that was highly unlikely to have been incurred in service or otherwise related to his active duty service.  The examiner s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Consequently, the Board gives more probative weight to the December 2017 VA examiner s opinion.

While the Veteran and his family believe, as reflected in lay statements of record, that his respiratory disability is related to an in-service injury, event, or disease, including involvement in Project SHAD, they are not competent to provide a nexus opinion in this case.  This issue is also medically complex, as it requires knowledge of specific causal relations, as well as interpretation of diagnostic testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the December 2017 medical opinion of record.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim of service connection for a respiratory disability, to include pneumonia and bronchitis, due to exposure to test agents used during Project SHAD, must be denied.  See 38 U.S.C. � 5107(b); 38 C.F.R. � 3.102.

B. MULLINS

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	H. Fisher, Associate Counsel


judge_norm: JENNIFER HWA

text:
Citation Nr: 1811000
Decision Date: 02/22/18    Archive Date: 03/06/18

DOCKET NO.  14-08 707	)	DATE
	)
	)

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

THE ISSUES

1.  Entitlement to a rating in excess of 30 percent for retrorectal leiomyosarcoma, status post low anterior resection, coloanal anastomosis for a retrorectal tumor, small bowel resection with ileostomy closure.

2.  Entitlement to an initial rating in excess of 10 percent for chronic diarrhea, the residual of a large and small bowel resection.

3.  Entitlement to an initial compensable rating for a vertical scar, right anterior trunk, from sternum to pubis associated with retrorectal leiomyosarcoma, status post low anterior resection, coloanal anastomosis for a retrorectal tumor, small bowel resection with ileostomy closure.

4.  Entitlement to an initial compensable rating for erectile dysfunction.

5.  Entitlement to special monthly compensation (SMC) due to housebound status from May 1, 2010 through October 31, 2012.

6.  Entitlement to higher level of special monthly compensation than that currently in effect due to the Veteran's housebound status, effective October 31, 2012.

7.  Entitlement to a higher level of special monthly compensation than that currently in effect for loss of use of a creative organ, effective May 1, 2010.

8.  Entitlement to a total rating due to unemployability caused by service-connected disabilities.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel

INTRODUCTION

The Veteran served on active duty from June 1968 to June 1972.

This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In his substantive appeal, VA Form 9 received by VA in March 2014, the Veteran raised contentions to the effect that earlier effective dates were warranted for his service-connected disabilities.  Those claims have not been certified to the Board on appeal nor have they otherwise been developed for appellate purposes.  Therefore, the Board has no jurisdiction over those claims, and they will not be considered below.  38 U.S.C. � 7104(a) (2012); 38 C.F.R. � 20.101 (2017).  They are referred to the RO for appropriate action.

The Board has recharacterized the issues of entitlement to a higher level of SMC to better comport with the record.

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

REMAND

The Veteran seeks increased ratings for a retrorectal leiomyosarcoma, chronic diarrhea, a scar on his right trunk, and erectile dysfunction as well as the inextricably intertwined issues of entitlement to special monthly compensation (SMC) and a total rating due to unemployability caused by service-connected disabilities (TDIU).  However, he has not been examined by VA since November 2013, and there are no records on file reflecting his treatment since January 2014.  Given the passage of time and his suggestion that there has been an increase in severity of his service-connected disabilities, additional development of the record is warranted.

Accordingly, the case is remanded for the following action:

1.  Ask the Veteran for the names and addresses of all health care providers (VA and non-VA) who have treated him since January 2014.  Then request those records directly from the health care providers identified by the Veteran.

A negative reply or a failure to respond to any request must be noted in writing and associated with the claims folder.

If the records are held by an agency or department of the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought.  38 U.S.C. � 5103A(b) (2012); 38 C.F.R. � 3.159(c)(2) (2017).

If the requested records are unavailable, but are not held by an agency or department of the federal government, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C. � 5103A(b); 38 C.F.R. � 3.159(e) (2017).

2.  When the actions in part 1 have been completed, schedule the Veteran for a surgical examination to determine the severity of his retrorectal leiomyosarcoma, status post low anterior resection, coloanal anastomosis for a retrorectal tumor, small bowel resection with ileostomy closure; chronic diarrhea; and right trunk scar.

The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand.

The examiner must comment on the following:

a.  Whether there has been any recurrence or metastasis of the Veteran's retrorectal leiomyosarcoma;

b.  Whether the Veteran experiences anal leakage, and if so, whether it is constant but slight, moderate but occasional, or extensive;

c.  Whether the Veteran experiences involuntary bowel movements, and if so, whether they are occasional or frequent and whether they necessitate wearing pads; and

d.  Whether the Veteran experiences chronic diarrhea, and if so, whether the symptoms are slight, moderate, or severe.

e.  Whether the Veteran has complete loss of sphincter control.

f.  The dimensions of the right trunk scar;

g.  Whether the scar is deep or superficial;

h.  Whether the scar causes limitation of motion;

i.  Whether the scar is stable or unstable, i.e., whether there is frequent loss of covering of skin over the scar;

j.  Whether the scar is painful on examination;

The examiner must also consider the effects of the Veteran's retrorectal leiomyosarcoma, chronic diarrhea, and scar on the Veteran's ordinary activity, including, but not limited to, his employment and activities of daily living.  The examiner should focus and reflect on the functional impairments and how they impact the Veteran's occupational activities.

3.  When the actions in part 1 have been completed, schedule the Veteran for a genitourinary examination to determine the severity of the Veteran's erectile dysfunction.

The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand.

In particular, the VA examiner must comment on whether there are any abnormalities associated with his erectile dysfunction, e.g., deformity, and whether the Veteran is receiving any treatment for erectile dysfunction.

4.  The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims.  The consequences for failure to report for a scheduled VA examination without good cause may include denial of a claim.  38 C.F.R. � 3.655 (2017).

A copy of the notice informing the Veteran of the date, time, and location of each examination must be associated with the claims folder.  If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder.

5.  When the actions requested in parts 1, 2, 3, and, if necessary, 4 have been completed, undertake any other indicated development.  Then readjudicate the following issues:

a.  Entitlement to a rating in excess of 30 percent for retrorectal leiomyosarcoma, status post low anterior resection, coloanal anastomosis for a retrorectal tumor, small bowel resection with ileostomy closure;

b.  Entitlement to an initial rating in excess of 10 percent for chronic diarrhea, the residual of a large and small bowel resection;

c.  Entitlement to an initial compensable rating for a vertical scar, right anterior trunk, from sternum to pubis associated with retrorectal leiomyosarcoma, status post low anterior resection, coloanal anastomosis for a retrorectal tumor, small bowel resection with ileostomy closure;

d.  Entitlement to an initial compensable rating for erectile dysfunction;

e.  Entitlement to SMC due to housebound status from May 1, 2010 through October 31, 2012;

f.  Entitlement to higher level of SMC than that currently in effect due to the Veteran's housebound status, effective October 31, 2012.

g.  Entitlement to a higher level of SMC than that currently in effect for loss of use of a creative organ, effective May 1, 2010.

h.  Entitlement to a TDIU.

If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond.  Thereafter, if in order, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue.

The Veteran need take no action unless he is notified to do so.  However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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.  38 U.S.C. �� 5109B, 7112 (2012).

_________________________________________________
JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. � 7252 (2012), 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) (2017).


judge_norm: MATTHEW W BLACKWELDER

text: Service connection for pes planus is denied. FINDING OF FACTS 1. The Veteran’s bilateral pes planus was noted upon entry into service, therefore preexisted his entrance into active service, and the presumption of soundness does not apply. 2. Competent and credible medical evidence does not show worsening of the Veteran’s pes planus during active duty.

text:
��Citation Nr: 18110000

Decision Date: 06/11/18	Archive Date: 06/11/18

DOCKET NO. 15-11 557

DATE:	June 11, 2018

ORDER

Service connection for pes planus is denied.

FINDING OF FACTS

1.  The Veteran s bilateral pes planus was noted upon entry into service, therefore preexisted his entrance into active service, and the presumption of soundness does not apply.

2. Competent and credible medical evidence does not show worsening of the Veteran s pes planus during active duty.

CONCLUSION OF LAW

The criteria for service connection for pes planus have not been met.  38 U.S.C. � 1110; 38 C.F.R. �� 3.303, 3.304, 3.306.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1988 to November 1988.  This matter is on appeal from a December 2013 rating decision.

Service Connection

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. � 1110.  Service connection  means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. � 3.303.

The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. � 1132 (presumption of sound condition). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234; see also 38 U.S.C. � 1132.

 [I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.  Wagner, 370 F.3d at 1096; see also 38 U.S.C. � 1153; 38 C.F.R. � 3.306.  A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C. � 1153; 38 C.F.R. � 3.306.  Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. � 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).

To be  noted  within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. � 3.304 (b); see also 38 U.S.C. � 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. Id. at 240

In this case, the Veteran s pes planus was noted upon entry, thus the presumption of soundness does not apply.  Since the Veteran can only bring a claim for aggravation of the preexisting condition, the Veteran has the burden to show aggravation with evidence of symptomatic manifestations of the condition during service.  If the presumption of aggravation arises, the burden shifts to VA to establish a lack of aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

The Veteran s July 1988 medical prescreening form noted a pre-existing pes planus.  His August 1988 entrance physical examination also confirmed a diagnosis of moderate bilateral pes planus.  A training report indicated that the Veteran performed well during basic training and expressed desire to be retained for active duty, despite his condition.  Another service treatment records notes that the medical staff met with the Veteran in August 1988 and noted that no special treatments had ever been offered to treat the Veteran s foot condition.  It was noted that he would only be required to wear boots once per month if he was able to complete training.  The Veteran was returned to sick call to try arch supports and foot soaks.  He was instructed to return in his 5th or 6th week to discuss a change in MOS.  AS such, the military was clearly aware of the Veteran s pre-existing condition, and provided him an opportunity to attempt basic training.  Unfortunately, the foot condition proved to be too problematic to allow him to succeed in the military.

As noted, if a worsening of a pre-existing condition is shown, VA has the burden of rebutting the presumption.  While the evidence did not necessarily show worsening during service, VA nevertheless obtained a VA examination in November 2013.  There, the examiner confirmed bilateral pes planus, but he opined that the condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service.  The examiner acknowledged that the Veteran had complained of feet pain in service and had gone to sick call, where his flat feet were discussed.  However, the examiner found no evidence to support the fact that the Veteran s pes planus would not have progressed to the present extent in the absence of military basic and AIT training.  She did not find anything in medical literature that would support the progression of the condition over such a short period of time in the military.

In his Notice of Disagreement, the Veteran asserts that he never had pes planus prior to entering basic training and that he developed the condition as a result of service.  However, it is clear from his August 1988 service treatment record that he had sought advice regarding his pes planus and that he expressed his willingness to go through basic training despite the condition.  The Board acknowledges that the Veteran is competent to provide statements regarding to symptoms such as pain.  However, the determination as to whether a disability increased in severity, beyond the natural progression is a medical matter beyond the knowledge of a non-expert and therefore beyond the Veteran s own competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007).  Thus, the Board affords no probative weight to the Veteran s assertion that his pes planus was permanently aggravated by his military service.  On the other hand, the findings provided by VA medical professionals in this case are of probative value, as the medical professionals have the requisite medical expertise to report such findings.

Therefore, the Board turns to the medical evidence of record.  The November 2013 VA opinion has opined that there is no evidence of worsening beyond the natural progression of the disability.  The Veteran has the burden to show aggravation with evidence of symptomatic manifestations of pes planus during service.  Here, there is no competent evidence to show an in-service increase or aggravation of pes planus.

For these reasons, the Board finds that there is no competent evidence to show a measured worsening of the Veteran s pes planus during active service.  Moreover, the Veteran has not met his burden to show an increase or aggravation of pes planus during active service.  With no competent evidence to show an increase in severity of the pes planus during service, the presumption of aggravation does not arise.  As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	N.Yeh, Associate Counsel


judge_norm: PAUL SORISIO

text:
��Citation Nr: 18111000

Decision Date: 06/14/18	Archive Date: 06/14/18

DOCKET NO. 13-33 040

DATE:	June 14, 2018

REMANDED

Entitlement to service connection for tuberous sclerosis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1990 to September 1993.  This matter is before the Board of Veterans  Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Service connection for tuberous sclerosis is remanded.

The Board finds that additional development of the issue is required before appellate adjudication.  At his hearing in March 2018, the Veteran asserted that his tuberous sclerosis was secondary to his service-connected psychiatric disorder.  The Board finds that an opinion is needed to address this contention.

The Veteran also contends that his tuberous sclerosis is an undiagnosed illness or is due to chemical gas exposure in Southwest Asia.

At his hearing, he indicated that a genetic test did not show the gene associated with tuberous sclerosis and it therefore may not be a genetic condition, but an undiagnosed illness.  The Board notes that the Veteran is treated for his tuberous sclerosis at Barnes-Jewish Hospital in St. Louis and treatment records for that hospital have not been associated with claims file.  A remand is required to allow VA to obtain authorization and request these records.

Additionally, in a January 2017 Gulf War examination, the examiner opined that the Veteran s genetic disorder was not caused or aggravated by environmental exposures.  However, no rationale accompanied this opinion and is therefore not adequate.  An additional opinion should be obtained, to include any additional medical evidence obtained after the records request.

The matter is REMANDED for the following actions:

1. Ask the Veteran to complete a VA Form 21-4142 for Barnes-Jewish Hospital and the facility at which his genetic test was performed.  Request the Veteran submit any relevant evidence in his possession, to include genetic testing results (if so desired).

2. After awaiting an appropriate time for response to #1 and associating any records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his tuberous sclerosis.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including as secondary to a psychiatric disorder.  The examiner is to address the following:

Whether it is at least as likely as not that the Veteran s tuberous sclerosis is

(1) proximately due to service-connected psychiatric disorder, or

(2) aggravated beyond its natural progression by his psychiatric disorder.

3. Obtain an additional opinion regarding the Veteran s tuberous sclerosis diagnosis and environmental exposures.  The appropriate clinician is to gather information on the exposures in the Southwest Asia and conduct all testing necessary to rule out diagnoses of medically explained illnesses giving rise to the Veteran s symptoms.

If after consideration of any additional medical records the Veteran s diagnosis of tuberous sclerosis is continued, the opinion should address:

Whether the Veteran s tuberous sclerosis/brain condition is at least as likely as not proximately due to or aggravated beyond its natural progression by environmental exposures the Veteran may have had during his service in Southwest Asia.

The clinician(s) is to provide a comprehensive rationale for all opinions expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion.

Paul Sorisio

Veterans Law Judge

Board of Veterans  Appeals

ATTORNEY FOR THE BOARD	K. Cruz, Associate Counsel