Citation Nr: 1427733 Decision Date: 06/18/14 Archive Date: 06/26/14 DOCKET NO. 10-06 071 ) DATE On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
- Whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability.
- Entitlement to service connection for a left knee disability.
- Entitlement to service connection for a right knee disability.
- Entitlement to service connection for a lung disability.
- Entitlement to service connection for a right shoulder disability.
- Entitlement to service connection for a right hip disability.
- Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD).
- Entitlement to a rating in excess of 10 percent prior to February 9, 2012 for degenerative disc disease of the lumbosacral spine with lumbar strain.
- Entitlement to a rating in excess of 20 percent since February 9, 2012 for degenerative disc disease of the lumbosacral spine with lumbar strain.
- Entitlement to a rating in excess of 10 percent for evulsion fracture of the left hip.
- Entitlement to a rating in excess of 10 percent for stress headaches.
- Entitlement to a rating in excess of 30 percent for irritable bowel syndrome.
- Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
Appellant represented by: Paul M. Goodson, Attorney WITNESSES AT HEARING ON APPEAL Appellant & SpouseATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel
The Veteran had active service from July 1981 to July 1984 and from July 1985 to May 1993, including service in the Southwest Asia theater of operations.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted an increased 10 percent rating for the Veteran’s service-connected left hip disability, effective December 14, 2007 (date of claim). These matters were previously before the Board in August 2013 when they were remanded to afford the Veteran a hearing.
The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in March 2014; a transcript of the hearing is associated with the claims file. At the hearing, the Veteran raised a claim for TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Such is not a separate claim, but a part of the claim on appeal.
The issues of service connection for a left ankle disability, a right shoulder disability, a right knee disability, a left knee disability, a lung disability, and a right hip disability, increased ratings for the lumbosacral spine and the left hip, and entitlement to a TDIU rating, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Sleep apnea had its onset in service.
2. Resolving all reasonable doubt in the Veteran’s favor, throughout the appeal period, the Veteran’s stress headaches have been manifested by characteristic prostrating attacks occurring at least once a month over several months.
3. Resolving all reasonable doubt in the Veteran’s favor, throughout the appeal period, the Veteran’s irritable bowel syndrome is manifested by daily abdominal pain, diarrhea, constipation, and impairment of sphincter control; complete loss of sphincter control is not shown at any time during the appeal period.
CONCLUSIONS OF LAW
1. The criteria for establishing entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).
2. Throughout the appeal period, the criteria for a 30 percent rating, but no higher, for stress headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100 (2013).
3. Throughout the appeal period, the criteria for a 60 percent rating, but no higher, for irritable bowel syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.113, 4.114, Diagnostic Codes 8873-7319, 7332 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In this case, the Board finds that service connection is warranted for the Veteran’s sleep apnea, and that a 30 percent rating is warranted for the Veteran’s service-connected headaches. At the March 2014 videoconference hearing, the Veteran testified that a 30 percent would satisfy his appeal. As this represents a complete grant of the benefits sought on appeal, no discussion of VA’s duty to notify and assist is necessary.
Regarding the Veteran’s claims for an increased rating for his irritable bowel syndrome, in a claim for increase, the VCAA requirement is notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA’s duties to notify and assist in the development of his claim. A January 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also provided notice of the types of evidence necessary to establish a disability rating and effective date. An April 2012 supplemental statement of the case readjudicated the matter after additional development was completed. The Veteran has not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).
VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran’s post-service VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He was also provided with VA examinations in March 2009 and February 2012.
The Board finds that the March 2009 and February 2012 VA examination reports are adequate for evaluation purposes because the examiners conducted a clinical evaluation, elicited the Veteran’s reported symptomatology, and described the disability in sufficient detail so that the Board’s evaluation of the d
isability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).
The Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) at which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the March 2014 hearing, the VLJ posed relevant questions, discussed the evidence of record and sought to identify pertinent evidence that was not of record. In so doing, the VLJ informed the Veteran and his attorney of the issues on appeal, the basis of the prior determination and the elements of the claim that were lacking. A review of the record reveals no assertion, by the Veteran or his attorney, that VA or the VLJ failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the VLJ complied with the duties set forth in Bryant and the Board can adjudicate the claim based on the current record.