judge_norm: S BUSH

condition: psychiatric

text:
��Citation Nr: 20016000

Decision Date: 03/03/20	Archive Date: 03/02/20

DOCKET NO. 19-35 771

DATE: March 3, 2020

ORDER

Entitlement to an initial rating in excess of 50 percent for mood disorder is denied.

FINDING OF FACT

The Veteran s mood disorder has been manifested by no more than occupational and social impairment with reduced reliability and productivity throughout the appeal period.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 50 percent for mood disorder are not met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9422.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from February 1979 to November 1999. This matter comes before the Board of Veterans  Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  .

1. Entitlement to an initial rating in excess of 50 percent for mood disorder is denied.

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 percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C. � 1155.  The disability must be viewed in relation to its history.  38 C.F.R. � 4.1.  If two disability ratings are potentially applicable, 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.  Reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. � 4.3.

The Veteran s mood disorder is rated pursuant to 38 C.F.R. � 4.130, DC 9422, which is rated under the General Rating Formula for Mental Disorders.  A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. � 4.130, DC 9432.  A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

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

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, 118 (Fed. Cir. 2013).

Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected depressive disorder and chronic pain disorder.  See October 2017 Disability Benefits Questionnaire (DBQ).  As the evidence of record does not sufficiently distinguish the symptoms of these disorders from his service-connected mood disorder, the instant discussion attributes all of the Veteran s mental health symptoms to his mood disorder.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).

Upon review of the totality of the record, a rating in excess of 50 percent is not warranted at any point during the appeal period, as the Veteran s symptoms are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment.  In this regard, there is no evidence of suicidal or homicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic attacks or depression affecting the ability to function independently; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other symptoms of similar severity, frequency, and duration.  On the contrary, the record shows normal speech and communication skills, cooperative behavior, and normal thought processes.  The Veteran s hygiene has been appropriate and within normal limits, and he has been oriented at all times.

As to social impairment, the Veteran reported currently living with his long-term girlfriend and expressed having a  shaky  relationship due to his problems with intimacy.  See November 2017 VA examination report.  He reported being married to his ex-wife for 20 years before divorcing in 2015 and described himself as being  difficult to live with.   Id; see also October 2017 DBQ.  He described having good relationship with his parents and five siblings and indicated having a  fair relationship  with his son.  Id.  While the Veteran indicated having one close friend, he stated that he chooses to spend most of his time by himself and did not  feel motivated to really spend time with anyone else.   Id; see also November 2017 VA examination report.  Overall, the Board finds the Veteran has difficulty, but not an inability, to establish and maintain effective work and social relationships, consistent with a 50 percent rating.

While difficulty in adapting to stressful circumstances (including work or a work-like setting) has been endorsed, the Board emphasizes that the Veteran reported working at the same job for the past 12 years and stated that he has never been fired or suspended from a job.  See October 2017 DBQ.  At the November 2017 VA examination, the Veteran indicated that his continued physical limitations placed a significant amount of strain on his abilities at work; however, some loss of industrial capacity is contemplated in the 50 percent rating currently assigned.  38 C.F.R. � 4.1.  While the Board does not doubt that the Veteran experiences difficulty with stressful circumstances, given the above work history and remaining evidence, this symptom, alone, does not equate to occupational and social impairment with deficiencies in most areas.

With respect to near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the record indicates the Veteran has depressed mood and anxiety, but it is not near-continuous.   Indeed, the Veteran declined any mental health support in September 2019, noting at the time that he was feeling  fine  and would follow up if needed.  In the October 2017 DBQ, the Veteran reported pain problems due to his service-connected disabilities.  He endorsed feeling miserable because of the pain, in addition to symptoms of low self-esteem, helplessness, hopelessness, and kinesiophobia, and expressed increased difficulty doing certain activities such as yard work and sports.  He also stated that he often feels  sad and unmotivated,  and is depressed because he cannot enjoy himself like he used to.  See November 2017 VA examination report and July 2019 VA treatment record.  However, there is no indication in the record of an inability to function independently, appropriately and effectively due to such symptoms.  Thus, while the Veteran experiences depression and anxiety, the Board finds his symptoms are contemplated by the 50 percent rating and are not so severe as to affect his ability to function independently, appropriately and effectively, nor could they be considered  near-continuous  in nature.

As to impaired impulse control, the Veteran has reported irritability.  He remarked that his pain makes him get angry for no reason and that such behavior has negatively impacted his relationships, particularly his marriage.  See October 2017 DBQ.  The evidence shows no history of physical violence, inappropriate behavior, or danger of hurting self or others during the appeal period.  Furthermore, treatment records consistently reflect normal thought content and processes, as well as intact insight and judgment.  Thus, while the Veteran struggles with transient and intermittent periods of irritability, the Board finds his symptoms do not correlate with impaired impulse control needed for a higher evaluation.

Notably, both examiners have found, at worst, that the Veteran experiences occupational and social impairment with reduced reliability and productivity due to his psychiatric disorder, which is consistent with the above-cited evidence of record and contemplated by his current 50 percent disability rating.  Thus, for reasons outlined above, a rating in excess of 50 percent is denied.

S. BUSH

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	S.S. Mahoney

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


series: legacy

judge_norm: C CRAWFORD

judge_role: Veterans Law Judge

disposition: granted

condition: skin

disposition: remanded

text:
��Citation Nr: 20017000

Decision Date: 03/05/20	Archive Date: 03/04/20

DOCKET NO. 13-15 985

DATE: March 5, 2020

ORDER

Service connection for left ankle pain is granted.

Service connection for a skin disorder is granted.

REMANDED

Service connection for nasal breathing problems is remanded.

FINDING OF FACT

The Veteran has an undiagnosed illness manifested by joint pain disabling to a degree of 10 percent or more; and an undiagnosed illness manifested by signs or symptoms involving the skin disabling to a degree of 10 percent or more.

CONCLUSIONS OF LAW

1. The criteria for service connection for an undiagnosed illness manifested by left ankle joint pain have been met.  38 U.S.C. �� 1110, 1117, 5107; 38 C.F.R. �� 3.102, 3.317.

2. The criteria for service connection for an undiagnosed illness manifested by signs or symptoms involving the skin have been met.  38 U.S.C. �� 1110, 1117, 5107; 38 C.F.R. �� 3.102, 3.317.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from July 1999 to September 2007; and he is a Persian Gulf War Veteran.   Military awards include the Combat Action Ribbon, a Navy Unit Commendation Medal, and a Presidential Unit Citation, and a Global War on Terrorism Service Medal.

The case is on appeal from a rating decision issued in September 2011.

In a decision dated in June 2017, the Board denied service connection for bilateral hearing loss and remanded the claims of service connection for sleep apnea, vertigo, a left ankle disorder, hives, and nasal breathing problems for further development.

In November 2017, the Board remanded the claims for sleep apnea, vertigo, a left ankle disorder, a skin disorder, and a nasal disorder for compliance with its June 2017 directives.

In a rating decision dated in November 2018, the RO granted service connection for sleep apnea; and in a rating decision dated in September 2019, the RO granted service connection for vertigo; thus resolving the appeal for those benefits.

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. �� 1110, 1131; 38 C.F.R. � 3.303.   To establish a right to compensation for a present disability, 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 so-called  nexus  requirement.   Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Additionally, VA will also pay compensation to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability, provided that such disability became manifest either during that veteran s active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more thereafter.  38 U.S.C. � 1117; 38 C.F.R. � 3.317.

Signs or symptoms which may be manifestations of undiagnosed illness include joint pain, and signs or symptoms involving the skin.  38 C.F.R. � 3.317(b)(1).

1. Service connection for left ankle pain

The Veteran seeks service connection for left ankle pain.  VA medical records dated from May 2008 (less than one year after the Veteran s separation from service) advise of joint pain.

Joint pain is one of the signs or symptoms which may be manifestations of an undiagnosed illness.  See 38 C.F.R. � 3.317(b)(5).

Military records confirm that the Veteran served in Iraq and Kuwait during the Persian Gulf War.  There is no allegation or evidence of left ankle pain before the Veteran s service in the Persian Gulf.

Additionally, post-service medical records relate complaints of left ankle pain and limitation of motion that, according to a November 2014 VA examining physician,  is an undiagnosed illness as there is no documentation to indicate a pattern for etiology or diagnosis.   See VA ankle examiner s November 2019 opinion.  This is highly probative evidence that favors the claim.

Further, under Burton, if there is functional impairment due to painful motion, a minimum 10 percent rating is warranted.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  See also 38 C.F.R. � 4.40, 4.45, and 4.59.  Under these provisions, the Veteran would be entitled to a 10 percent rating for the functional impairment (limitation of left ankle joint motion) due to joint pain; which satisfies the criteria for an award of service connection under 38 C.F.R. � 3.317(a)(1).

In this regard, the Board notes that a reviewing nurse practitioner had previously suggested that the Veteran s left ankle condition was a  sprain or strain  that was  a clear diagnosis and etiology  and, as such, was not an undiagnosed illness.  See August 2019 VA claims file review opinion.  However, this contention is opposed by radiology testing.  See, e.g., April 2015 (and July 2013) x-ray findings of  negative bilateral ankles.   Nor is there otherwise a diagnosis of left ankle sprain or strain in treatment records.  The Board therefore accords the August 2019 opinion no probative weight.

The preponderance of the evidence thus favors the claim.  Service connection for left ankle joint pain under the presumptive provisions of 38 C.F.R. � 3.317(a)(1) is therefore warranted and the appeal is granted.

2. Service connection for a skin disorder

The Veteran also seeks service connection for skin complaints.  VA medical records dating from May 2008 (within one year of the Veteran s separation from service) describe multiple conditions involving the face.

VA regulations provide that signs or symptoms involving the skin may be manifestations of an undiagnosed illness.  See 38 C.F.R. � 3.317(b)(5).

As stated before, military records confirm that the Veteran served in Iraq and Kuwait during the Persian Gulf War, and in-service post deployment records inform that the Veteran was exposed to pesticide treated uniforms, and to chemicals, during his deployments to the Persian Gulf.

As for initial presentation, there is no allegation or evidence of a skin disorder before the Veteran s service in the Persian Gulf; and, apart from a dark nevi on the left cheek, none thereafter during service.  However, the Veteran has had numerous skin problems since service, including hives, angioedema of the lips, urticaria, and vitiligo; and according to a VA physician, the Veteran s vitiligo is of unknown etiology.  See VA Teledermatology records dated in January 2014.  This assertion is not refuted by any other provider.

Moreover, the vitiligo, which involves the Veteran s face, would warrant a 10 percent rating under Diagnostic Code 7823.  See 38 C.F.R. � 4.118, Diagnostic Code 7823.  This satisfies the criteria for an award of service connection under 38 C.F.R. � 3.317(a)(1).

The Board accordingly finds that service connection for a skin disorder under the presumptive provisions of 38 C.F.R. � 3.317(a)(1) is warranted and the appeal is granted.

REASONS FOR REMAND

Service connection for nasal breathing problems.

In addition to the foregoing, the Veteran seeks service connection for a nasal disorder, which he says began during service.  See Veteran s March 2010 claim for service connection for  nasal breathing problems.

STRs contain at least one entry involving a nasal problem.  See STR dated January 8, 2006, which advises of congestion and a  possible polyp.

On VA examination in December 2017, the Veteran complained of nasal congestion.  However, the examiner averred that there was  no objective evidence to support Veterans claim of Chronic Sinusitis. No diagnosis warranted for Chronic Sinusitis;  although the examiner acknowledged that imaging studies of the sinuses or other areas had not been done.  See also August 2019 VA examiner s assertion that she was  unable to confirm a current chronic diagnosis with current available records and/or the exam. No x-ray in available records confirms chronic sinusitis.   Before a decision on this claim can be made imaging testing should be done.

The matters are REMANDED for the following action:

Schedule the Veteran for a new VA examination regarding his claim for a nasal breathing disorder.  In conjunction with this examination, the examiner must:

(a.) Review the claims file; especially, the STRs.

(b.) Discuss the Veteran s in-service experiences and symptoms (including the Veteran s environmental exposures in the Persian Gulf) and current complaints and symptoms with the Veteran and document the Veteran s contentions in the examination report.

(c.) Physically examine the Veteran.

(d.) Conduct imaging testing; and then

(e.) Opine, for each nasal disorder found on examination, as to whether it is at least as likely as not (50 percent or greater probability) that the disorder

i.	began during active duty service; or,

(Continued on the next page)

ii.	is related to any incident/event of the Veteran s active duty service.

A discussion of the facts and the medical principles involved will be of considerable assistance to the Board.

C. CRAWFORD

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	P. Childers, Counsel

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


judge_norm: KEITH W ALLEN

disposition: denied

benefit: dic

text:
��Citation Nr: 20018000

Decision Date: 03/09/20	Archive Date: 03/09/20

DOCKET NO. 16-56 279

DATE: March 9, 2020

ORDER

Entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits, including Dependency and Indemnity Compensation (DIC), is denied.

FINDINGS OF FACT

1. The decedent did not have verifiable active military, naval, or air service.

2. The appellant, claiming to be his lawful child, did not provide adequate information to identify the decedent s branch of service, entrance or separation date, service number, or status of discharge. The local regional office (RO) consequently was unable to verify the decedent s period of service, branch of service, or status of his discharge.

CONCLUSION OF LAW

The criteria for entitlement to DIC benefits have not been met. 38 U.S.C. �� 101(24), 1110, 1131; 38 C.F.R. �� 3.303, 3.312, 3.318(a); Sabonis v. Brown, 6 Vet. App. 426 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The decedent died in January 2007. The appellant is claiming entitlement to VA death benefits, including DIC, as a surviving child.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a May 2016 administrative decision of a Department of Veteran Affairs (VA) RO denying DIC benefits since the appellant did not provide sufficient information to identify the character and circumstances of the decedent s purported service.

In December 2018, the Board remanded this claim for further development, including to try and verify the decedent s service through other identifying information the appellant had provided   such as the decedent s social security number, date of birth, possible dates of service and possible branches of service. There was substantial compliance with the remand directives, at least to the extent permissible based on the information available. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions); but see also D Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only  substantial  rather than strict or exact compliance with the Board s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Entitlement to DIC is denied.

Entitlement to VA benefits, including DIC and other death benefits, is generally conditioned on  veteran  status with respect to the individual on whose alleged service such benefits are claimed. See 38 U.S.C. �� 101, 1310, 1311, 1312, 1318, 1541, 5121 (2012); 38 C.F.R. �� 3.1, 3.3(b), 3.5, 3.1000 (2017). A person seeking VA benefits must first establish by a preponderance of the evidence that the service member upon whose service such benefits are predicated has attained the status of a  veteran.  D Amico v. West, 12 Vet. App. 264 (1999), rev d on other grounds, 209 F.3d 1322 (2000); Holmes v. Brown, 10 Vet. App. 38, 40 (1997).

The term  Veteran  means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. � 101(2); 38 C.F.R. � 3.1(d).

VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In addition, service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. Id.

For the purpose of establishing entitlement to pension, compensation, DIC, or burial benefits, Veteran status usually is shown through submission of a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge. 38 C.F.R. � 3.203.

In this case, the appellant submitted a claim in October 2015 in which pertinent information regarding the decedent s service was missing from the form. The appellant did not know the date the decedent had entered service or separated from service. The appellant indicated that the Branch of Service was the Navy and listed  fired  as the place of last separation.

The appellant submitted an updated claim later in October 2015 in which she indicated that the decedent may have served in the Navy, Army, National Guard, or Marine Corps. She also indicated that the decedent s separation from service was in June 1957.

In November 2015, the appellant submitted a Social Security Administration (SSA) application for survivors  benefits, and she again indicated that the decedent had entered into service in 1957, but she did not know when he separated from service.

Despite the lack of identifying service information submitted by the appellant, the agency of original jurisdiction (AOJ) used the decedent s name, date of birth, social security number, and an approximate period of service to search for service records to qualify the decedent as a Veteran. In February 2019, a request for the decedent s service records was sent to the National Personnel Records Center (NPRC) for the Navy and Army via the Personnel Information and Exchange System (PIES).

In June 2019, the AOJ received a negative PIES response from the Navy. The NPRC stated a record could not be identified without the service number. The NPRC added that, during the period of service submitted by the appellant, around 1957, service numbers with eight digits were used in lieu of social security numbers as identifiers and a service number is required to verify the branch and period of service. The appellant did not supply the AOJ with the decedent s service number.

In August 2019, the AOJ sent development letters to the Pentagon Office of the Secretary of the Army and to the Pentagon Office of the Secretary of the Navy. In September 2019, a negative response was received from the Pentagon Office of the Secretary of the Army. The Department of the Army stated that a search of its systems and other databases was performed and no records were located for the decedent. The Department of the Army indicated that all records for Veterans separated from the Army prior to October 1, 2002 were sent to the NPRC.

In October 2019, a negative PIES response was received from the NPRC for the Army. Also in October 2019, a follow-up development letter was sent to the Pentagon Office of the Secretary of the Navy. In December 2019, a negative response was received from the Department of the Navy, Headquarters United States Marine Corps. The response indicated the decedent could not be identified as a Marine or a Marine Veteran, but further consideration can be given if additional information regarding his service can be provided to the Marines.  However, the AOJ was unable to provide additional information regarding the service number, dates of service or branch of service because the appellant did not know or could not provide the needed information.

In December 2019, a negative response was received from the Pentagon Office of the Secretary of the Navy. The Department of the Navy indicated that all records for Veterans are held by the NPRC. And, as explained, the AOJ received negative responses from the NPRC regarding verification of Veteran status for the decedent.

Furthermore, the appellant has not submitted a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, or any other service department documentation verifying the decedent as a Veteran, or a birth certificate verifying her relationship as the decedent s daughter. She has received several notifications requesting the submission of additional documents. See June 2016 Correspondence and September 2016 Appeal Notification Letter. However, she has not responded. In pursuing a claim, a claimant has responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If the claimant wishes help in developing her claim, including by obtaining these additional records, she cannot passively wait for it in circumstances where she may or should have information that is essential in obtaining evidence. Id.

For these reasons and bases, the Board concludes that the appellant is ineligible for VA death benefits as a matter of law because the evidence fails to establish that the decedent had qualifying military service as a  Veteran . The NPRC was unable to certify the decedent's claimed service after an exhaustive search based on the information provided. Accordingly, because the NPRC failed to certify that the decedent had the requisite service as a member of any branches of the United States Armed Forces, the decedent has not achieved Veteran status for purposes of establishing the appellant's derivative eligibility for VA death benefits as the decedent's surviving child.

At least currently, there simply is no legal basis for the appellant's claim for VA death benefits. And, as this claim must be denied as a matter of law, the benefit of the doubt doctrine is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. Hamm, Associate Counsel

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


judge_norm: V CHIAPPETTA

text:
��Citation Nr: 20019000

Decision Date: 03/12/20	Archive Date: 03/12/20

DOCKET NO. 14-22 255

DATE: March 12, 2020

ORDER

Service connection for Crohn's disease is granted.

FINDING OF FACT

The evidence is in equipoise as to whether the Veteran s Crohn s disease at least as likely as not began in service.

CONCLUSION OF LAW

Resolving all doubt in the Veteran s favor, the criteria for service connection for Crohn s disease are met.  38 U.S.C. �� 1110, 1031, 5107(b) (2012); 38 C.F.R. �� 3.102, 3.303, 3.304 (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from January 1968 to January 1972.

The Veteran testified before the undersigned Veterans Law Judge during a December 2017 videoconference hearing.  The transcript is of record.

The Board previously remanded the appeal for further development in February 2018.

Entitlement to service connection for Crohn s disease.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. � 1110; 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).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. � 5107; 38 C.F.R. � 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

There is no dispute that the Veteran has a current diagnosis of Crohn s disease.  See Dr. N.W. s December 2017 letter.

Service treatment records confirm that the Veteran complained at least once of stomach cramps during service.  See a March 1971 service treatment record.  Indeed, the Veteran offered sworn testimony that he had rectal bleeding and stomach cramps during service.  Transcript page 21.  He also testified that he had continuous symptoms since service.  Transcript page 26.  He also submitted written statements that he was exposed to various chemicals while performing his duties two Naval ships during service, and purports that such may have contributed to his in-service and post-service gastrointestinal conditions.  See May 2013 notice of disagreement.  His DD-214 confirms that his in-service duties were the civilian equivalent of a fireman.

The appeal turns on whether the Veteran s current Crohn s disease is related to his symptoms or exposures in service.  For the reasons explained below, the Board finds that the evidence is at least in equipoise that the Veteran s Crohn s disease had in-service onset.

The Board initially notes that Crohn s disease was not formally diagnosed until 1986, when the Veteran was 37 years old.  A hemicolectomy was done in July 1986, with a temporary colostomy.  After two weeks the Veteran hemorrhaged and had to be readmitted to the hospital.  In September 1986, the Veteran s remaining colon and rectum were removed and a permanent colostomy at the ileum was performed.  He developed a fistula and a pancreatic cyst, again requiring surgery.  In the middle of December 1986, he developed an intestinal infection and was readmitted to the hospital three weeks.  He was noted to have  severe intractable Crohn s disease  and ulcerative colitis.  See a March 5, 1987 Examiner s Report.

No prior treatment records exist, but the Veteran has competently and credibly testified that the Veteran indeed sought treatment for many years prior to 1986 for gastrointestinal problems.  In a January 2020 statement, the Veteran noted that as early as August 1972, he sought private treatment for his gastrointestinal problems, including rectal bleeding.  The Veteran also reported seeking private treatment in 1973, 1978 and 1982, but that all of the records were unavailable.

Pertinently, in support of his claim, the Veteran has submitted a statement from his wife recounting her own observations of the Veteran s struggles since his service separation.  She reported that she met the Veteran when he separated from service in January 1972, and that from the time they were newlyweds, in 1973, she noticed that the Veteran had stomach cramps and rectal bleeding.  She reported that he was treated for internal hemorrhoids for a couple of years but the symptoms got worse.  She reported that the Veteran was always running to the bathroom and began to lose weight.  She remembered going on vacation when their son was young and that the Veteran was always in the bathroom.  She reported that the Veteran was in and out of hospitals for years until he was finally diagnosed with Crohn s disease and underwent surgery for the same.  See wife s November 2017 statement.

There are competing medical opinions of record addressing the etiology of the Veteran s Crohn s disease, but the Board is not entirely satisfied with either one.  Arguably in favor of the Veteran s claim is the opinion of Dr. N.W., the Veteran s private physician.  In a December 2017 letter, Dr. N.W., indicated that he treated the Veteran for Crohn s disease for approximately 20 years, and was partners with a retired physician, Dr. C., who treated the Veteran prior to that time.  Dr. N.W. opined that it is certainly possible that the Veteran developed Crohn s as a result of chemical exposure during service.  Dr. N.W. based the opinion on his treatment of the Veteran for the previous 20 years, which would have included the reports of the Veteran and his wife confirming that the Veteran s reports of gastrointestinal symptoms since service, as well as studies that have linked Crohn s disease to occupational chemical exposure.  Notably however, the opinion only speculates as to the possibility of a relationship, and does not indicate how probable it is that this Veteran s exposures caused him to develop Crohn s disease.  Nevertheless, Dr. N.W. s opinion does suggest in-service onset, notwithstanding the actual cause.

In an effort to obtain a more informative opinion, the Board remanded the Veteran s appeal so that a VA examiner could assess the record and opine as to whether the Veteran s Crohn s disease is related to service.  A February 2019 examiner determined it was not possible to say without resorting to speculation that the Veteran s Crohn s disease had its onset during active service, or is otherwise related to any in-service disease, event, or injury, to include chemical exposures.  The examiner explained that the cause of Crohn s is unknown and that no doctor could connect the same to exposures in service without resort to speculation.  Notably, in reaching this conclusion, the examiner did not address whether the reported symptoms as described by the Veteran and his wife prior to 1986 were at least as likely as not the beginning symptoms of the Veteran s Crohn s disease, or otherwise discuss the significance, if any, of the actual severity of the disability upon its diagnosis in 1986.  Moreover, the February 2019 VA examiner seemed to place an emphasis on the fact that there was no medical record of continuous treatment for gastrointestinal complaints since service.  In noting the same, it is unclear whether the examiner was aware that the Veteran competently and credibly reported that he did seek treatment shortly after service and he was hospitalized on occasions after service, but that records of such treatment are not available.

While both medical opinions of record remain couched in speculation, given the discussion provided by the February 2019 VA examiner, the Board believes that further attempts to develop this case will amount to exercises in futility.  Indeed, without the records of care documenting the nature of the Veteran s treatment for the time period in between his separation from service in 1972 and his major surgery for intractable Crohn s disease in 1986, a more probative medical opinion addressing onset and nexus may not be possible.  Indeed, the Board takes notice of Internet research posted by the Harvard Medical School indicating that Crohn s disease is a long-term (chronic) condition, and typically begins between ages 15 and 40.   No one knows for sure what triggers the initial intestinal inflammation at the start of Crohn s disease.  A viral or bacterial infection may start the process by activating the immune system in the intestine.  However, the immune system attack is not turned off: it stays active and creates inflammation even after the infection goes away.  https://www.health.harvard.edu/a_to_z/crohns-disease-a-to-z.

The Board finds that the Veteran and his wife have offered competent and credible statements regarding a pattern of gastrointestinal symptoms from the time of service separation until the Veteran was diagnosed with severe intractable Crohn s disease in 1986.  They attest to receiving private treatment for such bowel and stomach symptoms, to include rectal bleeding, shortly after service and through 1986.  Their lay statements are bolstered by the 1986 surgical report indicating Crohn s disease that had reached such severity as to require multiple surgeries in 1986 and a permanent colostomy.  The Board places a high probative value on the lay statements from the Veteran and his wife.  The Veteran himself testified before the Board in December 2017, and the undersigned found his testimony regarding onset date of symptoms during service, and intensification of symptoms through 1986 to be highly credible.  Indeed, witness demeanor can affect credibility and is appropriate for consideration by the Board.  See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff d per curiam, 78 F.3d. 604 (Fed. Cir. 1996).

(Continued on Next Page)

Taking into account (1) the positive and negative medical opinions of record and the longstanding medical nature of the disability itself; (2) the Veteran s service treatment records, which document treatment for stomach cramps; (3) the Veteran s and his wife s lay statements regarding in-service onset of gastrointestinal symptoms; (3) the Veteran s credible statements that he sought treatment for such symptoms as early as 1972 and that medical records documenting such care are unavailable; (4) the Veteran s wife s credible descriptions as to how the Veteran s symptoms progressed and intensified from 1972 leading up to 1986; and (5) the 1986 and 1987 treatment reports that are of record showing the presence of severe intractable Crohn s disease, requiring surgery and a permanent colostomy, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran s gastrointestinal disability, now diagnosed as Crohn s disease, had in-service onset.

Resolving all doubt in the Veteran s favor, the benefit sought on appeal is granted.

V. Chiappetta

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Donna D. Ebaugh, Counsel

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


judge_norm: JONATHAN B KRAMER

benefit: tdiu

text:
��Citation Nr: 20020000

Decision Date: 03/18/20	Archive Date: 03/18/20

DOCKET NO. 14-20 730

DATE: March 18, 2020

ORDER

Entitlement to total disability based on individual unemployability (TDIU) is granted.

FINDING OF FACT

The Veteran s service-connected disabilities render him unable to secure or follow a substantially gainful occupation.

CONCLUSION OF LAW

The criteria for entitlement to TDIU have been met.  38 U.S.C. �� 1155, 5107; 38 C.F.R. �� 3.102, 3.340, 3.341, 4.3, 4.16(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1973 to December 1973.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

A Board hearing was conducted via videoconference with the RO in Buffalo, New York.  A transcript of this hearing is contained within the electronic claims file.  See August 30, 2016, Hearing Transcript (Tr.).

The Veteran himself formally never filed an application for TDIU.  The Board, in an April 2018 decision, found that the issue of entitlement to TDIU reasonably was raised by the record, in accordance with Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), in conjunction with the Veteran s then-pending increased rating claim for headaches.  With respect to that claim, the Board also awarded the Veteran a 50 percent disability rating, and the RO assigned an effective date of August 16, 2011 the date on which the Veteran filed his increased rating claim.  Thus, the appeal period for entitlement to TDIU mirrors that of the increased rating claim and currently is before the Board.  In its April 2018 decision, the Board remanded the issue herein, instructing VA to provide the Veteran with the requisite notice and forms for filing an application for TDIU.  VA complied and subsequently denied the claim in its October 2019 Supplemental Statement of the Case (SSOC).

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  A finding of total disability is appropriate when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. �� 3.340(a)(1), 4.15, 4.16.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider.  Vettese v. Brown, 7 Vet. App. 31, 34 35 (1994).

Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more.  If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  38 C.F.R. � 4.16(a).

The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU.  Marginal employment, however, is not considered substantially gainful employment.  Marginal employment includes situations in which an individual s annual income does not exceed the poverty threshold for one person.  Employment may be marginal even when the individual s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop.  38 C.F.R. � 4.16(a).

In evaluating a veteran s employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities.  38 C.F.R. �� 3.341, 4.16, 4.19.

The Veteran currently has a combined disability evaluation of 60 percent; he is service connected for headaches (50 percent disabling) and a traumatic brain injury (TBI) (10 percent disabling).  The Veteran s headaches and TBI, however, are disabilities resulting from common etiology or a single accident.  Thus, for the purposes of TDIU, the Board considers the Veteran to have one, single disability rated as 60 percent disabling, meeting the schedular criteria for TDIU.

The evidence of record shows that, throughout the entire period on appeal, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected headaches.

On his formal, February 2019 application for TDIU, the Veteran indicated that he last worked full time 1984 as a mail handler.  The Veteran completed two years of college and has no other education or training since having become unemployed.

An October 2011 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran s complaints and medical history.  The VA examiner noted that  when [headaches] are present[, the Veteran is] unable to work.   A March 2019 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran s complaints and medical history.  The VA examiner stated that the Veteran is  unable to work in any capacity due to headaches.  [The] headaches are post concussive, severe and unrelenting: unable to focus, pay attention and function during headache.  [Severe] nausea and vomiting during headache.  He is forgetful due to headache because decreased attention.

VA medical center (VAMC) records between these two examinations document the continued care and treatment of the Veteran for various conditions, including his headaches.  There is, however, no medical evidence to suggest that the Veteran s headache condition improved between the 2011 and 2019 examination.  As the Board sees it, even since 2011, the Veteran s headaches have been precluding him from maintaining or securing a substantially gainful occupation, and the headaches only have gotten worse since then.  To be sure, the 2019 examiner used words like  severe,   unrelenting,  and these headaches cause  nausea  and  vomiting.   As such, the Board finds that the Veteran is entitled to TDIU for the entire period on appeal since August 16, 2011 and will grant his appeal in full.  See 38 C.F.R. � 4.16(a).

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Trevor T. Bernard, Associate Counsel

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


judge_norm: T BLAKE CARTER

judge_role: Acting Veterans Law Judge

condition: ptsd

text:
��Citation Nr: 20021000

Decision Date: 03/24/20	Archive Date: 03/24/20

DOCKET NO. 15-34 964

DATE: March 24, 2020

REMANDED

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 2003 to June 2005.

Per the Veteran s request, a Travel Board of Veterans  Appeals (Board) hearing was scheduled for January 2019 but the Veteran did not appear for the hearing, and there is no returned mail for the notice. Additionally, the Board notes that the Veteran s representative submitted an informal hearing presentation (IHP) in March 2020. As the Veteran did not appear for the Board hearing or show good cause for his absence, the Board considers the hearing request thereby satisfied. 38 C.F.R. � 20.704.

This matter comes before the Board on an appeal from a June 2013 rating decision that denied an initial rating in excess of 70 percent, effective from November 30, 2011 (date of claim to reopen), for PTSD and denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran timely appealed that decision as to both claims. The Board notes that the Agency of Original Jurisdiction (AOJ) granted the Veteran s TDIU claim effective from November 30, 2011, thus, that claim is no longer on appeal before the Board.

Entitlement to an initial rating in excess of 70 percent for PTSD

Although the Board has granted the Veteran s TDIU claim, this award does not render his claim for an initial rating for PTSD moot as he could be granted a 100 percent schedular rating for his PTSD. The Veteran s most recent VA psychiatric examination was conducted in March 2013. The Veteran has since submitted several statements indicating that his symptoms of PTSD increased in severity and the Veteran s VA medical treatment records indicate that the Veteran s psychiatric symptoms have worsened. Specifically, a February 2017 VA social work discharge note lists the Veteran s problem for that visit as an upsurge of psychiatric symptoms. As such, it appears that the March 2013 VA examination does not represent the current severity of the Veteran s service-connected PTSD. Therefore, the case must be remanded to provide the Veteran with a new examination regarding the severity of his PTSD.

The matter is REMANDED for the following actions:

1. The AOJ should obtain copies of all pertinent, outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, the Veteran s assistance in obtaining these records should be requested as needed. All attempts to obtain records should be documented in the claims folder.

2. Then, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran s disability under the rating criteria, along with a complete rationale for any opinions provided.

3. Then, review the examination report and any medical opinions to ensure that the requested information was provided.  If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures.

4. Then, readjudicate the claim.  If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then, return the case to the Board.

T. Blake Carter

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. Frazier, Associate Attorney

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


judge_norm: M TENNER

condition: shoulder

text:
��Citation Nr: 20022000

Decision Date: 03/30/20	Archive Date: 03/30/20

DOCKET NO. 15-45 245

DATE: March 30, 2020

REMANDED

Entitlement to service connection for residuals of bilateral wrist and left shoulder injuries, claimed as arthritis, is remanded.

Entitlement to service connection for bilateral foot disabilities is remanded.

Entitlement to service connection for residuals of a broken right toe is remanded.

Entitlement to service connection for a temporomandibular joint disorder, claimed as jawbone trauma, is remanded.

Entitlement to an increased disability evaluation for bilateral hearing loss is remanded.

Entitlement to an increased disability evaluation for post-traumatic degenerative arthritis of the right elbow (hereinafter, a right elbow disability) is remanded.

Entitlement to total disability based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1965 to August 1968 and from January 1973 to December 1975.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.

In September 2018, the Veteran testified before the undersigned at a hearing via videoconference.  A transcript of his testimony has been associated with the claims file.

At the outset, the Board notes that several documents were added to the claims file following the issuance of the September 2014 Statement of the Case, including before this case was certified to the Board in June 2016.  These records include service treatment records, service personnel records, and VA treatment records.  However, the RO has not yet considered the evidence of record received after September 2014 in connection with this case.  Pursuant to 38 C.F.R. � 19.31, they are required to do so.  Moreover, the Veteran has not waived RO consideration of this evidence.  As such, the RO must consider this evidence and then prepare a Supplemental Statement of the Case.  Additional reasons for remand are set forth in further detail below.

1. Entitlement to service connection for residuals of bilateral wrist and left arm injuries, claimed as arthritis, is remanded.

2. Entitlement to service connection for bilateral foot disabilities is remanded.

The Veteran is claiming entitlement to service connection for  arthritis,  as well as bilateral  foot problems.   Previously, however, claims for residuals of bilateral wrist injuries and bilateral ankle synovitis were adjudicated in a January 2008 rating decision, which the Veteran did not appeal.

New claims that are based on distinctly and differently diagnosed diseases or injuries than a previously denied claim must be considered independently, despite similar symptoms.  Therefore, new and material evidence is not required in such cases.  Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).   The Veteran was previously denied entitlement to service connection for residuals of bilateral wrist injuries and bilateral ankle synovitis in a January 2008 rating decision.  As a threshold matter, then, the Board must determine whether the Veteran s current arthritis and foot claims amount to new claims, or whether they should be characterized as a petition to reopen the prior claims for residual wrist injuries and bilateral ankle synovitis.  Velez v. Shinseki, 23 Vet. App. 199 (2009).

To do so, the Board looks to the factors laid out in the Velez case for guidance, including considerations such as whether the scope of the current claim encompasses the prior claim; whether the new and previous diagnoses are proper diagnoses versus lay diagnoses; whether medical evidence of the newly claimed diagnosis was of record at the time of the prior denial; whether the prior final denial considered evidence of the newly claimed diagnosis; and whether the newly claimed diagnosis has a  factual basis  that is distinct from the prior diagnosis.  See id.

Here, the Board finds that applying the Velez factors weighs in favor of treating the claims as a petition to reopen the previously denied claims for residuals of bilateral wrist injuries and ankle synovitis.

Regarding the scope and characterization of the prior claims, the Veteran s prior claims encompass his current claims for  arthritis  and  foot problems.

For instance, the Veteran wrote in his March 2007 claim, which was later denied in a January 2008 rating decision, that he broke his wrists on-base in Germany and had casts placed over both.  On the same March 2007 claim, the Veteran stated that he had chronic ankle and foot pain due to sprained ankles in service.  He was afforded an August 2007 VA examination in connection with his claim.  At the examination, the Veteran reported symptoms such as increased foot pain, heel pain, and discomfort after walking for 30 minutes, as well as numbness in his toes and lower extremities and impaired coordination.  Ultimately, the examiner diagnosed his ankle and related foot problems as synovitis, as well as chronic tendonitis, chronic ankle pain and instability, chronic plantar fasciitis, and bilateral heel spurs.

With respect to his current claims, the Veteran did not specify whether he was claiming service connection for arthritis in any particular joints.  At his Board hearing, however, he testified that the issue with his arthritis was mainly in his hands and feet, and that he cannot hold things very well.  See Hearing Transcript at 13.  More specifically, he stated that when he was stationed in Germany during his first period of service, he was injured in a fall and had casts placed on his right and left arms, and that these joints have hurt ever since he was in the military.  See id. at 13-14.  The Veteran also stated at an April 2013 DRO Conference that he intended for his arthritis claim to encompass his left shoulder as well.

Additionally, with respect to his claims for  foot problems,  he testified that he has been told that he has spurs on the heels of both feet, which ache all the time.  See id. at 15.  He also testified that his feet constantly ache and are cold all the time, and that he has seen podiatrists and other doctors to treat this condition.  Id. at 15-16.  Although the Veteran previously argued that his foot problems were related to his time in parachute jump school during service, he also testified that he would have to run frequently during his time in the military, and that this contributed to his foot problems.  Id. at 17.

While the Veteran has characterized his disabilities slightly differently in the current claim than in the past claim, the symptoms he described in connection with his prior claims are very similar to those he has described with respect to the present one.  As such, this weighs in favor of treating his current claims as a petition to reopen the previously denied claims from the January 2008 rating decision.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (discussing claims wherein the same disease or injury was in fact adjudicated in a prior claim).  The Board will recharacterize the claim for bilateral wrist injuries as a claim for the residuals of bilateral wrist and left shoulder injuries to better reflect the Veteran s intentions.  See, e.g., April 2013 DRO Conference Report.

As set forth above, a claim that has been denied by an unappealed decision generally may not thereafter be reopened.  38 U.S.C. � 7105(c).  Applicable regulations, however, provide that if at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. � 3.156(c).  Therefore, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial.  Rather, the claim is simply reviewed on a de novo basis.

Here, the January 2008 rating decision indicates that the RO considered service treatment and personnel records from between August 13, 1965, through August 12, 1968, and from the period between January 12, 1975, and December 16, 1975.  It is unclear, however, whether VA had service treatment records from both of his periods of service when it issued the January 2008 decision.  See, e.g., April 2013 DRO Conference Report (indicating that the RO did not have service treatment records for the period between August 13, 1965, and August 12, 1968).  Moreover, it appears that service treatment records and personnel records from his first period of service and from the remainder of his second period of service were added to the claims file after the January 2008 rating decision was issued.  These records are related to the current claims.  For instance, in the Veteran s April 1973 service personnel records he was awarded a parachutist badge in connection with his time in the 82nd Airborne division.  Additionally, in July 1973 service treatment records he reported twisting an ankle, and in a November 1972 report of medical history he endorsed broken bones.  Because the Veteran has claimed that his wrist and foot disabilities stem from injuries that occurred during service, the Board finds that these records constitute relevant service department records.  As such, 38 C.F.R. � 3.156(c) applies.  New and material evidence is thus not necessary to reach the merits of these claims.

However, before reaching the merits, the Board finds that remand is needed for additional development to take place.

With respect to the claims for residuals of bilateral wrist and left shoulder injuries, the Board notes that no VA examination for the bilateral elbows and forearms or for the left shoulder and arm has been provided with respect to this specific claim.  VA s duties to assist claimants in the development of claims also may include scheduling a medical examination.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. � 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence  indicates  that there  may  be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).

Here, the record demonstrates that he has complained of pain in his hands and wrists and difficulty gripping things.  The Board notes that even absent an underlying diagnosis or pathology, pain alone can constitute a disability under VA law where such pain results in functional impairment.  Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).  Moreover, the Veteran  service treatment records and testimony reflect that he suffered wrist injuries following various accidents.  See, e.g., Hearing Transcript at 14; March 1975 Service Treatment Records (indicating the Veteran fell downstairs and felt pain in his right shoulder, elbow, and wrist); July 1968 Service Treatment Records (indicating the Veteran fractured his right elbow, forearm, and wrist in 1966).  Given this evidence of record, the Board finds that remand is warranted to obtain a medical examination and opinion on the nature and etiology of his claimed disability.  See McLendon, 20 Vet. App. at 83-86.

Regarding the bilateral foot disabilities claim, the Veteran s August 2007 VA examination reflects diagnoses including chronic tendonitis, chronic ankle pain and instability, chronic plantar fasciitis, and bilateral heel spurs.  The Veteran s VA treatment records note that he was a parachutist while in service and also contain diagnoses of paresthetic neuropathy, peripheral neuropathy, hyperalgesic neuropathy, idiopathic neuropathy, chronic foot pain that is possibly related to obesity, calcaneal plantar spurs, semi-rigid claw toes, and heel pain that forces him to walk on the balls of his feet.  See, e.g., December 2015 Podiatry Consult; January 2015 Physician Note; July 2013 Physician Note; September 2010 Physician Note; August 2010 Podiatry Note; April 2010 Podiatry PM&R Consult; June 2010 Podiatry Nurse Note; January 2008 Nuclear Medicine Consult; December 2004 Physician Note; December 2004 Annual Health Screen; November 2002 Annual Health Screen.  The August 2007 examiner, however, does not appear to have discussed the Veteran s history as a parachutist, his contentions with respect to running injuries, or most of the diagnoses in his VA treatment records   other than heel pain and spurs   in the examination report.  Moreover, in an April 2013 VA foot examination, the only disabilities diagnosed were residuals of a fractured left fifth toe, a moderate bunion deformity, and prominent plantar spurs.  This opinion also failed to discuss the Veteran s contentions and the diagnoses set forth above in his VA treatment records.

As such, it is unclear what the nature and etiology of the Veteran s disabilities are.  In the interest of assembling clear and reliable findings, remand is thus warranted to obtain a new VA examination that considers all relevant evidence of record.      Additionally, the available VA treatment records indicate that the Veteran received approval to see a private podiatrist, T.J.T, in 2018.  Records from this provider are not of record, however, and it does not appear that VA has attempted to obtain them or determined that they are unavailable.  The RO must attempt to obtain these records and associate them with the claims file on remand as well.

3. Entitlement to service connection for residuals of a broken right toe is remanded.

The Veteran also claims entitlement to service connection for residuals of a broken right fifth toe.  At his hearing, the Veteran testified that he broke the toes in his right foot after hitting a metal bedframe in approximately 1966 while on base in Aberdeen, Maryland.  He also stated that because this occurred shortly before he was supposed to depart for a new assignment in Germany, he was put in a surgical boot for approximately one month.  The Veteran stated that the pain has never completely gone away, and that his toes are painful when he walks.  See Hearing Transcript at 18-20.

In April 2013, the Veteran underwent a VA examination, which only diagnosed residuals of fractures of the left fifth toe (for which he was already entitled to service connection), but not the right.  Considering the recent holding in Saunders, however, the Board notes once more that pain alone, even without an underlying pathology or diagnosis, can still constitute a disability where such pain causes functional impairment.  Moreover, the April 2013 VA examiner noted that service treatment records reflected in-service trauma to the left foot in September 1975, but the examiner does not appear to have been able to review service treatment records from his first period of service.  As such, the April 2013 examination report does not describe service treatment records from January 1966, which were added to the record after the examination took place and which state that the Veteran hurt his fourth and fifth right toes when he kicked a bedframe.

Consequently, the Board finds that remand is warranted to obtain a new VA examination that considers all relevant evidence of record, including the service treatment records from the first period of service, as well as the Veteran s September 2018 hearing testimony.  On remand, the examiner is also reminded that even if the Veteran does not have a formal diagnosis with respect to his right toes, but has pain only, the examiner must still determine whether that pain causes functional loss.  Saunders, 886 F.3d at 1356.

4. Entitlement to service connection for a temporomandibular joint disorder, claimed as jawbone trauma, is remanded.

The Veteran states that while he was in service, he fell on his face and hit his jaw and his elbow.  He states that since this incident, his upper and lower jaw bones move around, cause him to bite himself, make grinding noises, and lock up.  The Veteran s service treatment records confirm that there was an incident in March 1975 in which he fell down a staircase and hit his right side.  The treatment records note numbness over the right intraorbital nerve distribution, with a possible right blowout fracture without entrapment.

In June 2013, the Veteran was scheduled for a VA dental and oral conditions examination with a VA dentist.  The examiner did not diagnose any oral or dental conditions.  Notably, however, the examiner stated that he reported some prolonged infraorbital paresthesia since the March 1975 incident, although this was not a dental condition or dental issue.

Significantly, the record does not indicate that the Veteran has any oral or dental conditions, nor does it indicate that the Veteran was not attempting to establish service connection for an oral or dental condition.  See April 2013 DRO Conference Report.  Instead, he was attempting to establish service connections for injuries to his jaw, including the prolonged paresthesia he mentioned during the June 2013 VA examination.  As such, the Board has recharacterized his claim to recognize this fact and to better reflect his intent.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In this regard, the Board finds that remand is necessary to afford the Veteran an appropriate VA examination for a temporomandibular joint disorder.

5. Entitlement to an increased disability evaluation for bilateral hearing loss is remanded.

6. Entitlement to an increased disability evaluation for a right elbow disability is remanded.

Additionally, the Veteran is seeking increased disability evaluations for his service-connected bilateral hearing loss and right elbow disability.  The Board finds that a remand is necessary to afford the Veteran a contemporaneous medical examination.  VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits.  See, e.g., 38 U.S.C. �� 5103, 5103A; 38 C.F.R. � 3.159.  VA s duties to assist a claimant in the development of a claim may include scheduling a medical examination.  Where, as here, the central question is the current level of severity of a disability that has already been service connected, particular attention must be paid to the age of the most recent examination report in the claims file.  A new medical examination is required when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition.  Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

With respect to his bilateral hearing loss, the Veteran was last afforded a VA examination in April 2013.  Since that time, he has testified that his hearing has worsened, and that he finds that his hearing aids are no longer helpful for improving his hearing acuity.  See Hearing Transcript at 9-10.  Although the Veteran has submitted a September 2018 audiogram that was performed at the VA Medical Center in Roseburg, Oregon, that indicates that his hearing may have worsened since his previous VA examination, this audiogram is insufficient for rating purposes.  For instance, it is unclear if a state-licensed audiologist performed the audiogram.  Additionally, while speech discrimination tests were performed, it is unclear whether Maryland CNC speech discrimination testing was used.  See 38 C.F.R. � 4.85; Savage v. Shinseki, 24 Vet. App. 259 (2011) (VA has a duty to return for clarification unclear or insufficient examination reports).  As such, an updated VA examination would be helpful to assess the current severity of the Veteran s hearing loss.

Additionally, with respect to his right elbow disability, the Veteran was last afforded a VA examination in April 2010, nearly a decade ago.  Since then, it appears that the severity of this disability has also worsened.  For instance, the Veteran testified that his arm will go numb, that he cannot extend his elbow fully, and that it begins to ache and twitch when he bends it.  See Hearing Transcript at 3-6.  Due to his elbow pain, he testified that he is forced to use his non-dominant hand frequently.  Id. at 6.  While his VA treatment records indicate right elbow pain, they do not describe it in terms of degrees of range of motion.  A new VA examination would thus be helpful to assess the current severity of this disability as well.

Moreover, the Board notes that the April 2010 VA examination suffers from certain deficiencies.  For instance, although the April 2010 examiner appears to have conducted range of motion testing on the opposite elbow joint and noted that the left elbow was  not painful with movement today,  the examiner did not indicate whether there was testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  Furthermore, while the examiner noted that the Veteran reported flare-ups such that flexion in the right elbow was decreased by 40 degrees, he did not obtain detailed information regarding the severity, frequency, duration, precipitating and alleviating factors, or the extent of the functional impairment during flare-ups from the Veteran.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017).  As such, a remand is necessary to afford the Veteran with a contemporaneous VA examination that complies with the holdings in both Sharp and Correia.

7. Entitlement to TDIU is remanded.

In May 2011 and January 2018, during the pendency of this appeal, the Veteran filed applications for TDIU.  In this regard, the RO granted TDIU, effective January 19, 2018, in a June 2018 rating decision.  Because this grant does not encompass the entire disability rating period on appeal, which began in 2010, the issue of entitlement to TDIU prior to this date remains pending in conjunction with his increased rating claims.  See Harper v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1618, No. 16-3519 (Dec. 6, 2018) (holding that once entitlement to TDIU is put in issue as part of a claim for a higher initial rating or increased rating and the RO grants TDIU that does not span the entire period on appeal, the issue of entitlement to TDIU for an earlier period is still on appeal).

It is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities shall be rated totally disabled.  38 C.F.R. � 4.16.  In deciding whether TDIU may be awarded, an adjudicator must first evaluate the severity of the Veteran s service-connected disabilities.  TDIU 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.  38 U.S.C. � 1155; 38 C.F.R. �� 3.340, 3.341, 4.16(a).

When his case was initially certified to the Board in June 2016, the Veteran was service-connected for tinnitus, bilateral hearing loss, his right elbow disability, and residuals of a left toe fracture with a combined disability rating of 20 percent.  Although his combined disability rating was later increased to 80 percent, effective March 30, 2017, the Veteran would not have been eligible for a schedular TDIU rating when his case first reached the Board.  In this decision, however, several service connection and increased rating claims have been remanded for further development.  The development for these issues could potentially result in new awards of service connection or increased disability evaluations, which could thus impact the outcome of the issue of entitlement to TDIU.  For this reason, TDIU is considered inextricably intertwined with these issues.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Indeed, at the Veteran s hearing, his representative testified that the outcome of the TDIU claim is dependent on the outcome of his claims herein.  As such, the Board finds that the claim for TDIU must be remanded as well.

Accordingly, the matters are REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records and any relevant, outstanding private treatment records, including the podiatry records from T.J.T.  If these records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.

2. Thereafter, schedule the Veteran for a VA examination to assess the nature and etiology of the claimed residuals of his bilateral wrist and left shoulder injuries.  The contents of the entire electronic claims folder, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran s documented medical history and assertions.

The examiner is asked to identify all current disabilities that have been present at the time the claim was filed or at any point during the pendency of this appeal.  In particular, the examiner should indicate whether the Veteran has a current diagnosis of arthritis in any of the bilateral wrist or left shoulder joints.  If the Veteran does not have any diagnosable conditions, but has pain only, determine whether the pain causes functional loss.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

For any identified disabilities, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to, the Veteran s military service, to include his various falls that caused arm injuries and broken bones during service.

A rationale should be provided for any opinion offered, and all opinions should be based on examination findings, historical records, and medical principles.

All necessary tests and studies should be performed, with all findings made available to the examiner prior to the completion of his or her report.  All clinical findings should be reported in detail.

3. Additionally, schedule the Veteran for a VA examination to assess the current severity of his service-connected right elbow disability.  The examiner is also asked to opine as to whether the severity of the Veteran s right elbow disability has changed in severity during the period on appeal and, if so, the approximate date of any change(s) and the extent of the severity of the disability at each stage.

The examination should be conducted in accordance with the current disability benefits questionnaire, to include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, consistent with 38 C.F.R. � 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016).

Additionally, the examiner should inquire whether the Veteran has any period(s) of flare-ups.  If the Veteran reports any periods of flare-ups, but range of motion testing could not be conducted during a flare-up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment.  If it is not possible to provide a response without resorting to mere speculation, and after doing everything that reasonably should be done to become informed, provide a clear explanation of why a response could not be provided without resorting to mere speculation.

4. Additionally, schedule the Veteran for a VA examination to assess the nature and etiology of his bilateral foot disabilities and the residuals of his right toe fracture.  The contents of the entire electronic claims folder, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran s documented medical history and assertions.

The examiner is asked to identify all current foot and right toe disabilities that have been present at the time the claim was filed or at any point during the pendency of this appeal.  If the Veteran does not have any diagnosable condition with respect to his bilateral feet or right toe, but has pain only, determine whether the pain causes functional loss.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

For any current disability identified, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to, the Veteran s military service, to include his work as a parachutist, his sprained ankles, and the incident where he reported kicking a metal bedframe.

A rationale should be provided for any opinion offered, and all opinions should be based on examination findings, historical records, and medical principles.  The examiner is specifically directed to consider evidence regarding the Veteran s hearing testimony and service treatment records that report ankle, foot, and toe injuries, his service personnel records describing his work as a parachutist, his prior VA examinations, and VA treatment records reflecting various diagnoses.

All necessary tests and studies should be performed, with all findings made available to the examiner prior to the completion of his or her report.  All clinical findings should be reported in detail.

5. Additionally, schedule the Veteran for a VA examination for a temporomandibular joint disorder.   The contents of the entire electronic claims folder, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran s documented medical history and assertions.

The examiner is asked to identify all current temporomandibular joint disabilities that have been present at the time the claim was filed or at any point during the pendency of this appeal.  If the Veteran does not have any diagnosable condition with respect to his temporomandibular joint, but has pain only, determine whether the pain causes functional loss.  See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

For any current disability identified, the examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in, or is otherwise related to, the Veteran s military service, to include the March 1975 accident where the Veteran fell on the right side of his face.

A rationale should be provided for any opinion offered, and all opinions should be based on examination findings, historical records, and medical principles.

All necessary tests and studies should be performed, with all findings made available to the examiner prior to the completion of his or her report.  All clinical findings should be reported in detail.

6. Additionally, schedule the Veteran for a VA examination to assess the current severity of his service-connected bilateral hearing loss.  The examiner is also asked to opine as to whether the severity of the Veteran s bilateral hearing loss has changed in severity during the period on appeal and, if so, the approximate date of any change(s) and the extent of the severity of the disability at each stage.

7. After completing the items above, readjudicate the Veteran s claim s, as well as his claim for TDIU benefits prior to January 19, 2018.  All evidence of record, including evidence received since the September 2014 Statement of the Case, should be considered.

M. Tenner

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	E. Rademacher, Associate Counsel

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