BVA No 09-48865 Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depression, and post-traumatic stress disorder (PTSD).

BVA NO. 09-48 865 Citation Nr: 1717500 Decision Date: 05/19/17 Archive Date: 06/05/17
On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depression, and post-traumatic stress disorder (PTSD).
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Kate Sosna, Associate Counsel

INTRODUCTION

The Veteran had active duty service from October 1972 to April 1977, as well as subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Wisconsin Army National Guard from January 1985 to January 1986.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.
The Veteran testified at an RO hearing in October 2009 and a Board hearing at the local RO before the undersigned Veterans Law Judge in May 2012. Transcripts from these hearings have been associated with the record.
The case was remanded by the Board for additional development in January 2013 and July 2014.
In November 2015, the Board denied entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board’s November 2015 denial of service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court), which, in June 2016, on the basis of a May 2016 Joint Motion for Partial Remand (JMPR), vacated the Board’s decision and remanded the matter to the Board for further action. Thereafter, in October 2016, the Board remanded the claim again for additional development pursuant to the JMPR.
A review of the record reveals that additional documents were added to the file after the issuance of the February 2017 supplemental statement of the case. However, in a February 2017 submission, the Veteran’s representative waived the right to have any additional evidence submitted by the Veteran considered by the RO. 38 C.F.R. § 20.1304(c) (2016). Therefore, the Board may properly consider such newly received evidence.
This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems.

FINDINGS OF FACT

1. The Veteran does not have PTSD as a result of a verified in-service stressor.
2. An acquired psychiatric disorder other than PTSD is not shown to be causally or etiologically related to any disease, injury, or incident during service, and a psychosis did not manifest within one year of the Veteran’s discharge from active service.

CONCLUSION OF LAW

The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.304, 3.307, 3.309 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
In the instant case, VA’s general duty to notify was satisfied by a March 2008 letter sent prior to the issuance of the rating decision on appeal. Thereafter, a March 2013 letter and attachment provided the Veteran with the notice required for claims for service connection for PTSD (to include, as requested in the January 2013 remand, claims for service connection for PTSD based on personal assault), and a PTSD stressor questionnaire for the Veteran’s completion was attached to this letter. While this letter was not provided prior to initial adjudication, the deficiency in the timing of this notice was remedied by readjudication in subsequent supplemental statements of the case in December 2013, December 2014, and February 2017. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).
The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This “duty to assist” contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues decided herein has been obtained. The Veteran’s service treatment records (STRs), service personnel records, and post-service VA and private treatment records have been obtained and considered. He has not identified any additional, outstanding records that have not been requested or obtained.
Additionally, the Veteran was afforded a VA examination in December 2013 and addendum opinions were provided in September 2014 and January 2017 addressing the claim decided herein. The conclusions reached following these examinations and in the addendum opinions are, in their totality, based on an interview with the Veteran, a review of the record, and a full psychiatric examination. Moreover, the clinicians offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion…must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met.
The Veteran also offered testimony before a Decision Review Officer (DRO) of the RO in October 2009 and the undersigned Veterans Law Judge at a Board hearing in May 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
During the October 2009 DRO hearing and the May 2012 Board hearing, the DRO and the undersigned Veterans Law Judge noted the issue on appeal. Also, information was solicited regarding the Veteran’s in-service experiences he alleges resulted in his psychiatric disorder, the type and onset of symptoms, and his contention that his military service caused his psychiatric disorder. Therefore, not only were the issues “explained…in terms of the scope of the claim for benefits,” but “the outstanding issues material to substantiating the claim,” were also fully explained. See Bryant, 23 Vet. App. at 497. As the hearing discussions raised the possibility that there were outstanding treatment records available through the Veteran’s National Guard unit, the Board remanded the case to obtain such records. Additionally, the testimony suggested the need for a VA examination addressing the claim for service connection adjudicated herein, and as indicated above, such was conducted in December 2013, and addendum opinions were obtained in September 2014 and January 2017. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran’s claim decided herein. As such, the Board finds that, consistent with Bryant, the DRO and the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.
Furthermore, the Board finds there has been substantial compliance with the Board’s January 2013, July 2014, and October 2016 remand directives and no further action in this regard is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). In January 2013, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran notice of the types of evidence that may be considered in a personal assault claim under 38 C.F.R. § 3.304(f) and request that he provide a detailed description of the incidents of personal assault. Such was accomplished by way of the aforementioned March 2013 VCAA letter. The January 2013 remand also directed the AOJ to obtain the Veteran’s service personnel records, which was accomplished in May 2013, as well as records regarding the Veteran’s period of service with the Wisconsin Army National Guard, which were received in May 2013 as well as in August 2014, after the July 2014 remand requesting additional records. The January 2013 remand also directed that the Veteran be provided an opportunity to identify any outstanding records and obtain updated VA treatment records, which was accomplished in the March 2013 VCAA letter and VA treatment records dated through December 2013 were subsequently obtained. Notably, while VA treatment records have not been associated with the record since that time, the Veteran has not reported and the record does not suggest that any outstanding, relevant treatment records exist. Finally, the January 2013 remand directed that the Veteran be afforded a VA examination in order to determine the current nature and etiology of his claimed disorders, which was accomplished in December 2013.
Additionally, and as requested in the July 2014 remand, an August 2014 letter from the AOJ asked the Veteran to provide more specific dates with respect to the injuries he claimed occurred during his time with the Wisconsin Army National Guard, and to provide any ACDUTRA or INACDUTRA orders. However, he did not reply to such letter. Therefore, development to obtain any additional National Guard records is not indicated. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, the Veteran did not complete the PTSD stressor questionnaire provided to him in March 2013, and given the nature of the stressors as described below, which are inherently unlikely to be verified (even if they were sufficient to result in a valid diagnosis of PTSD), the Board finds that additional development with regard to stressor verification is also not indicated. Id. Finally, as directed by the July 2014 remand, an addendum opinion was obtained in September 2014.
Most recently, in October 2016, the Board remanded the appeal for procurement of a medical opinion as to whether there is evidence of behavioral changes to indicate that any incidents of personal assault occurred, to specifically include the Veteran’s claimed stressor of being the victim of a mugging while he was in service. The requested addendum was provided in January 2017 and, as discussed above and further discussed below, the Board finds that the opinion is adequate to decide the claim.
Therefore, the Board finds that the AOJ has substantially complied with the January 2013, July 2014, and October 2016 remand directives such that no further action is necessary in this regard with respect to the claim adjudicated below. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet, App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002).
In light of the foregoing, the Board finds that VA’s duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Analysis

A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions “other than dishonorable.”
38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes:
(1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.
38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. According to 38 C.F.R. § 3.384, as applicable in the instant case, the term ‘psychosis’ includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; and substance/medication-induced psychotic disorder.
Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to “chronic” diseases such as psychoses listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In addition to the general principles governing service connection, to establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a). In this regard, the Board notes that for cases certified to the Board prior to August 4, 2014, as is the case here, the diagnosis of PTSD must be in accordance with the DSM-IV.
With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran “engaged in combat with the enemy.” See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d).
If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran’s lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. See 38 C.F.R. § 3.304(f).
Additionally, effective July 13, 2010, VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.
Personality disorders are not “diseases” for which service connection can be granted, and as a “matter of law” are not compensable disabilities. 38 C.F.R.
§ 3.303(c); Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, disability resulting from a mental disorder superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127.
Similarly, for claims filed after October 31, 1990, service connection may not be granted for substance abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.301 (a); VAOPGCPREC 2-98. However, the law does not preclude a Veteran from receiving compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 Fed. Cir. 2001).
When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran contends that he has an acquired psychiatric disorder as a result of his military service.
Review of the Veteran’s service personnel records do not reflect that he served in combat. As such, his unsupported assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement for “credible supporting evidence” means that “the Veteran’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor.” Dizoglio v. Brown, 9 Vet. App. 163 (1996).
However, VA recognizes that, because a personal assault is a personal and sensitive issue, many incidents are not officially reported, which in turn creates a proof problem in establishing they did. It is not unusual for there to be an absence of service records documenting the events the Veteran has alleged. Therefore, evidence from sources other than service records may corroborate an account of a stressor incident that is predicated on a personal assault. See, e.g., Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5).
Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in the mentioned sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it received to an appropriate mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id.
The STRs, to include the February 1977 discharge examination, do not reflect a psychiatric disability. The Veteran did report having “nervous trouble” on a medical history completed in conjunction with separation from service. A service hospital report for treatment for hepatitis showed that the Veteran reported a history of nervous condition prior to service. He had seen a psychiatrist, but no diagnosis was given.
The Veteran was discharged because he had been found to be dependent on alcohol or other drugs. In April 1977, he was treated at the VA for drug abuse, and an October 1977 VA examination showed a diagnosis of drug abuse, opiate type, in remission, by history. No other psychiatric diagnosis was given, although the Veteran reported previously being diagnosed with schizophrenia.
In July 1981, the Veteran was admitted to the VA following a suicide attempt. The diagnosis was mixed personality disorder with borderline, histrionic and explosive components. Again, in September 1987, the Veteran was admitted to the VA for a suicide attempt. The diagnosis was depression with suicidal ideation. During this period, clinical records also showed a diagnosis of PTSD and acute adjustment disorder. He was again admitted for drug abuse in May 1989. A VA treatment record in September 1993 showed that the Veteran was admitted for treatment for adjustment disorder with depressed mood. Follow up treatment records showed treatment for depression as well as PTSD. He was afforded a VA examination for pension purposes in September 1997. The examiner diagnosed major depressive disorder, but did not provide any sort of etiological opinion.
Additional VA and Vet Center records continued to document ongoing psychiatric treatment, to include in a PTSD group. In his hearing testimony, the Veteran asserted that he received psychiatric treatment while stationed at Fort Hood. He also reported that he was mugged while in service. The Veteran further alleged that he was “slapped around” by his drill sergeant and indicated that he experienced an incident where he dropped a grenade that caused him stress as well as more problems with his drill sergeant. He further claimed that he used drugs in service to self-medicate and that his symptoms have continued since service.
The January 2013 remand requested a VA psychiatric examination in which the examiner was to specifically indicate whether the Veteran met the diagnostic criteria for PTSD. In making this determination, the examiner was directed by the Board to offer an opinion as to whether there was evidence of behavioral changes to indicate that any incidents of personal assault occurred during service and, if so, whether any currently diagnosed PTSD was causally related to such incidents. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner was to offer an opinion as to whether such was as least as likely as not related to the Veteran’s military service.
The requested VA psychiatric examination was completed in December 2013, and the conclusion, documented on the reports from this examination to have included a review of the claims file, was that the Veteran did not meet DSM criteria for a diagnosis of PTSD or other acquired psychiatric disability, and that the only current diagnosis was a personality disorder; namely, “Personality Disorder NOS with antisocial, narcissistic, schizotypal, and schizoid traits.” The examiner indicated that the Veteran’s personality was longstanding, beginning in his late adolescence, and was manifested as a “pervasive and persistent pattern of behaviors and cognitions that deviate from the cultural norm.” The Veteran’s stressors reported at that time were recorded as: an incident in which a drill sergeant embarrassed him in formation for marching in the wrong direction by slapping him on the side of his head, and another incident in which a drill sergeant yelled at him and embarrassed him when he dropped a hand grenade during training; the Veteran apparently did not report the alleged mugging incident. The examiner noted that neither of the reported stressors was adequate to support a diagnosis of PTSD and that neither stressor was related to a personal assault.
As noted in the July 2014 remand, the December 2013 examiner did not address whether the personality disorder diagnosed at this examination was subject to a superimposed disease or injury that resulted in additional disability. Additionally, while the 2013 examiner determined that the Veteran’s alleged stressors were insufficient to support a diagnosis of PTSD and that the Veteran had no other psychiatric disorder other than a personality disorder, she did not reconcile these determinations with the evidence of record showing diagnoses and treatment for a variety of disorders, such as major depressive disorder, reflected on records contemporaneous to the VA examination, including December 2013 VA treatment records. As such, in July 2014 the Board remanded the appeal and requested an addendum opinion from the December 2013 VA examiner. The examiner was asked to identify all of the Veteran’s acquired psychiatric disorders that met the DSM criteria and offer an opinion as whether (1) the Veteran’s personality disorder was subject to a superimposed disease or injury during service that resulted in additional disability; and (2) reconcile the determination at the December 2013 VA examination that the Veteran did not have a psychiatric disorder other than a personality disorder with the substantial evidence of record showing diagnoses and treatment for a variety of acquired psychiatric disorders, to include major depressive disorder, contemporaneous to the VA examination, i.e., in December 2013 VA treatment records.
The requested addendum opinion, by the mental health professional who conducted the December 2013 VA examination, was completed in September 2014. She found with respect to Question 1 posed in the July 2014 remand that there was “no supporting documentation that would indicate a nexus for his…personality disorder, which has progressed normally, with[out] any service related event or diagnosis.”
As for Question 2 posed in the in the July 2014 remand, the clinician responded as follows:
At the time of the December 2013 exam[,] the patient had been carrying only the following [diagnoses]: depression by history, alcohol dependence by history, [and] polysubstance abuse by history[.] [The Veteran was] discharged from therapy by both his psychiatrist 9/2/12 and his psychologist 5/10/13. He returned to care Nov 8, 2013 but continued to carry [diagnoses] only [of] depression by history, and r/o anxiety disorder or PTSD. On Nov 22, his psychologist diagnosed him with Major Depression, however the symptoms which were described at this time were not sufficient to support such diagnosis. After a review of the patient’s records in their entirety including efile, and remand, and the C&P exam and interview of Dec 2013, it is the opinion of this examiner that the patient meets DSM[-]5 criteria for the following diagnoses: Personality Disorder NOS with borderline, antisocial, narcissistic, schizotypal and schizoid traits….
The patient over an 18 year period has been variously diagnosed with Major Depression, adjustment disorder, polysubstance dependence, cocaine dependence, anxiety disorder nos, alcohol dependence, depression nos, r/o [] schizophrenia, PTSD, and since 8/12/11 by psychiatrist H[] and psychologist D[] with “depression by history, polysubstance abuse by history, and alcohol abuse by history.” A diagnosis which contains the phrase “by history” does not imply that the patient meets criteria for that diagnosis at the time of the note, otherwise it would simply be noted as “Depression,” rather it indicates either that the patient has a history that contains that diagnosis and/or that the patient has some symptoms of that diagnosis but does not fulfill sufficient diagnostic criteria to support the diagnosis. In the case of [the Veteran], this has consistently been the case.
The patient over the years has consistently exhibited or reported the symptoms which support the DSM[-]IV and DSM[-]5 diagnosis of Personality Disorder NOS as described above with the most frequent symptoms reported being irritability and rumination about incidents during which he felt he was not sufficiently appreciated or respected. His mood component has always been reactive and generally related to issues of abandonment or rejection, and again the symptoms [the Veteran] reports consistently are irritability or anger over his treatment by others. There is nothing which connects the patient’s personality disorder to his military experience. Although he has some DSM[-]IV symptoms of PTSD[,] there is nothing in his reported military stressors which would support this diagnosis, which fact has been noted by several providers most recently Dr. H[]. He was given a diagnosis of MDD on 11/22/13[,] however the provider’s assessment did not document symptoms which would support this diagnosis and indeed the assessment in this note does not vary from previous notes which indicated that he met only criteria for depression by history. Additionally[,] his note of 12/18/13 lists his mood as “happy go lucky” by his own report. Given his history, his affective symptoms are clearly accounted for most effectively by the DSM[-]IV and DSM[-]5 diagnosis [of] Personality NOS as described above.
In light of the above, it is the opinion of this examiner that the patient meets most clearly the criteria for a diagnosis of Personality Disorder NOS which has progressed normally without evidence of exacerbation or aggravation and that he has met this criteria for many years and that it is less likely than not that his Personality Disorder NOS was caused by or the result of by any event in his military service.
In the June 2016 JMPR, the parties found that, as the 2013 and 2014 opinions did not address whether “any incidents of personal assault occurred[,]’ and “whether any currently diagnosed PTSD [was] related to such incident[,]” the VA examiner did not address the Veteran’s claimed stressor of being the victim of a mugging while he was in service. Thus, in October 2016 the Board remanded the appeal to obtain an addendum medical opinion to specifically address the Veteran’s claimed stressor of being the victim of a mugging while he was in service.
Accordingly, in January 2017, the VA examiner who performed the 2013 examination and provided the 2013 and 2014 opinions provided another addendum opinion to specifically address the whether the Veteran meets the DSM-IV criteria for PTSD based on a personal assault. Following a comprehensive review of the record, the examiner found that there is no evidence of an eligible or credible stressor that occurred in the military and, therefore, the Veteran cannot meet the DSM-IV or DSM-5 criteria for PTSD, and he did not meet the DSM-5 criteria for any diagnosis with a clear nexus to his military service.
Regarding the Veteran’s claim for PTSD, the examiner reviewed all of the Veteran’s claimed stressors, starting with his most recently alleged stressor and working backwards. First, she noted the alleged stressor of a suicide attempt during service. The examiner observed that there was no record of this event nor any mental health issue (besides substance abuse) in the Veteran’s STRs or for some time after service. Here, the Board observes that the examiner erroneously noted 1987 as the Veteran’s first suicide attempt but the records indicate an attempted in 1981; however as neither date was during the Veteran’s service, the Board finds this error is without consequence. Returning to the alleged in-service attempt, the examiner further noted that not only were there not records of such in the Veteran’s STRs, but that his post-service reports regarding the attempt were inconsistent in that the Veteran alternatively reported that he made the attempt by slashing his wrists, overdosing, and/or hanging.
Turning to the second alleged stressor, the Veteran reported being involved in a “serious” bus accident and hospitalized thereafter. However, the examiner noted that the Veteran’s STRs do not support his assertion that the accident was traumatic or serious in nature. In fact, the Board observes that the STRs do not reflect an accident occurred; rather such show that the bus stopped suddenly to avoid an accident. Specifically, the March 1975 record states that the Veteran was “involved in [an] accident while on [a] Greyhound bus…talking to another passenger behind him when the bus made [a] sudden stop[,] avoiding accident[.]” Moreover, as acknowledge by the examiner, the Veteran was not hospitalized after the accident. He was seen in sick call and advised to apply heat to his back which he injured when the bus suddenly stopped.
The third alleged stressor of being slapped “upside” the head by a drill instructor was address in the 2013 and 2014 opinions. The examiner again found that this stressor was insufficient to support a diagnosis of PTSD. Similarly, the fourth stressor of being humiliated in front of his peers when a drill instructor yelled at him for dropping a grenade was also addressed by the examiner previously and was found not to support a diagnosis of PTSD.
The fifth stressor involved the Veteran’s reports that a drill sergeant “jumped him and beat him up[.]” However, the examiner noted that there was no record of this in the Veteran’s STRs and that the report was not consistent with the Veteran’s reports during the 2013 examination with regard to his interactions with his drill instructor.
The sixth alleged stressor was being “stabbed by an ice pick” during service. Here, the examiner observed that an August 1975 STR (discussed below) notes the Veteran’s report that he was “playing around” with a friend when he was accidentally stuck with a hair pick. Thus, the examiner noted that being accidentally struck with a hair pick was not sufficient to support a diagnosis of PTSD and that the Veteran had provided inconsistent information regarding the incident.
The seventh alleged stressor relates to the alleged personal assault via mugging. In this regard, the Veteran reported someone was going to hit him over the head (apparently with a knife) but that he blocked the attack with his arm resulting in a serious laceration to his arm. The examiner observed that there was no evidence of this alleged attack in the Veteran’s STRs, despite the fact that “he used sick call frequently and in fact used it for several of his other reported traumas including the ‘bus accident’ and being ‘stabbed with an ice pick.'” The examiner further noted that there was no military police report regarding this alleged attack.
The eighth stressor was an alleged attack with a straight razor during a card game. Like the alleged mugging, the examiner observed that there was no documentation of treatment related to this incident and that there was no police report related to it.
The ninth and final stressor relates to the Veteran’s reports that he was a combat veteran who began using drugs in Vietnam and that “in situations when he has felt like others were attacking him or humiliating him[,]” he spoke in Vietnamese. However, the examiner found that the Veteran was never in Vietnam and his DD 214 does not show that he had any overseas service.
In addition to reviewing the Veteran’s reported stressors, the examiner also considered whether the Veteran may have exhibited certain behaviors in the military indicating he had been personally assaulted but was reluctant to discuss it. Specifically, she observed that he had numerous legal issues in service including an incident of misconduct (1973), civilian confinement in jail (1973), disobeying orders (1975), sleeping on duty (1976), being absent without leave (AWOL) (1976), being continuously late for formations (1976), being AWOL (1977), and a 1976 recommendation that the Veteran be dishonorably discharged to his shirking of his duties and lying.
After reviewing the alleged stressors and the Veteran’s military record, the examiner opined that it was less likely than not that the Veteran was mugged during service as:

1. It was [the Veteran’s] habit to use sick call frequently including for wounds or injuries received outside the line of duty and there is no evidence of this wound in his STRs, nor was it reported to the police/MPs.

2. There is actual documented evidence in the [Veteran]’s efile that many of [his] claimed stressors either did not occur or did not occur in the traumatic manner he has later stated.

3. During 2016 the patient did not report his mugging as being his trauma but instead specifically report[ed] his trauma was interaction with [a] drill [sergeant]…, suicide attempt while in the military…, and being in a serious bus accident and hospitalized….

[4]. The only markers (frequent disciplinary actions…) of psychological issues for this patient are entirely consistent with his known severe drug abuse diagnosis which was the focus of treatment for 5 months prior to being discharged due to rehab[ilitation] failure.”

Here, the Board also observes that there is no record of the Veteran being a victim of a mugging in his STRs. However, in March 2017, after the January 2017 addendum opinion was provided, the Veteran submitted a statement from his ex-wife and from a comrade, both of whom reported remembering the Veteran reporting to them that he had been attacked and stabbed. They reported taking him to the hospital for treatment of his alleged stab wound. Here, the Board notes that, while the Veteran, his ex-wife, and his comrade are competent to report what they witnessed, the reports regarding the mugging lack credibility in light of the evidence of record.
In this regard, the Veteran’s STRs contain records related to three left arm injuries. The first incident occurred in August 1975, and while the Veteran subsequently reported to treatment providers that he was injured by an ice pick (see above), treatment records indicate that there was a puncture wound to the left wrist that occurred “while playing around with a buddy who accidentally struck [the Veteran] with a hair comb…called a pick.” The second injury, which also occurred in August 1975, was reported as a laceration to the left forearm “while washing dishes[,]” which required stitches. Notably, the Veteran claimed at his October 2009 DRO hearing that, while he did not report the alleged mugging to any psychiatric treatment providers during service, he did report the mugging to the medical professionals who stitched his arm following the attack. Again, the records indicate that the left arm stitches the Veteran received were related to an injury incurred while washing dishes. In fact, when the Veteran sought service connection for the residual scar of his left forearm in 1994, he made no reference to a mugging, he subsequently reported in September 2002 that he received an “accidental knife wound,” and in October 2009 that he was stabbed by a fellow soldier, not an unknown assailant. The third left arm injury occurred in April 1976 when the Veteran “allegedly incurred [a left palm injury] when [he was] cleaning [a] .22 caliber pistol that fired into [his] left palm” while he was off duty. In addition to the fact that the records do not support the Veteran’s assertions of the in-service mugging, the record also indicates that the Veteran has other characteristics that call his veracity into question including the fact that he was a well-documented drug abuser during his service, he was cited for stealing property of other veterans during service, and attempted “to shirk his duties and trie[d] to lie his way out of it” during service.
Given the foregoing, the Board finds that the Veteran’s descriptions of his in-service mugging are inconsistent and not supported by the contemporaneous record, and, therefore, lack credibility. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d 78 F.3d 604 (Fed. Cir. 1996). In the instant case, the Veteran has not provided specific details surrounding such alleged stressors so as to allow verification, to include dates or names of the persons involved. Furthermore, there is no record in the Veteran’s STRs or personnel records that he ever experienced a mugging incident during his service, despite his reports to the DRO that he told the medical professionals about his mugging. In fact, the records document the Veteran’s left arm injury occurred while washing dishes, and clearly attribute his alleged injuries to other incidents, not a mugging. Finally, the Board acknowledges the Veteran’s comrade and his ex-wife’s reports that the Veteran told them he had been mugged and that they took him to the hospital for treatment of his injuries. However, neither person claims to have witnessed the mugging and their lay observations are based on the Veteran’s reports, which have been found to lack credibility. Therefore, in light of the fact that the Veteran’s statements regarding the alleged mugging are inconsistent with the available evidence, and were not reported until he had a self-interested reason for doing so, the Board finds that the Veteran’s statements describing his alleged in-service mugging to be not credible and they are afforded no probative weight. Similarly, the other lay statements of record that are based on the Veteran’s non-credible testimony are also afforded no probative weight.
Notably, in conjunction with the 2017 addendum opinion, the examiner again revisited whether the Veteran had any non-PTSD psychiatric diagnoses related to service. She acknowledged that the Veteran’s in-service diagnosis was related to substance abuse and that post-service diagnoses continued to be substance abuse. Moreover, his reports of using illicit substances to treat depression was not made until significantly after service, indicating no nexus to the Veteran’s military service. In this regard, the examiner observed that the Veteran’s post-service depression diagnoses were reactive in nature and were documented in his records as variously related to relationship issues, drug issues, legal issues, work stress, behavioral issues, anger issues, and the residuals of these. In fact, the criteria for an actual diagnosis, when met, was of an adjustment disorder with depression and anxiety, and the examiner noted that the Veteran experienced remission and/or improvement of these symptoms based on environmental factors. Thus, she found his post-service mental health disability was most consistent with an adjustment disorder, but that he did not exhibit symptomatology consistent with such a diagnosis during the appeal period.
Rather, the only diagnosis manifested during the appeal period was an unspecified personality disorder/personality disorder as was fully discussed in the 2013 and 2014 examination reports. Importantly, the parties to the JMPR found no fault in the Board’s discussion of any issue except as to whether the Veteran exhibited a PTSD diagnosis based on the alleged in-service mugging stressor. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (“[W]hen an attorney agrees to a [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier [v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed.”)
The above September 2014 and January 2017 addendum opinions are not directly contradicted by any other competent evidence, and the Board finds the comprehensive opinions, which clearly reflect detailed consideration of the entire record, to be definitive as to the matter of whether the Veteran has an acquired psychiatric disorder that is the result of service or a disability of in-service origin resulting from a mental disorder superimposed upon a personality disorder. See Nieves-Rodriguez, supra; Stefl, supra. In addition, given the lack of any evidence of a psychosis within one year of service, presumptive service connection on the basis of chronic disease, to include based on continuity of symptomatology, is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.
In making this determination, the Board has considered the Veteran’s assertions with regard to why he feels his psychiatric problems are the result of his experience during service. However, a determination as to whether the Veteran has an acquired psychiatric disorder that is related to service or a mental disorder superimposed on a personality disorder requires the expertise of a mental health professional as such a determination may only be made after a clinical analysis that a lay person does not that have the requisite training or knowledge to undertake. As such, the matter of whether the Veteran has an acquired psychiatric disorder that is the result of service, or a disability of in service origin resulting from a mental disorder superimposed upon a personality disorder, are complex questions that may not be competently addressed by lay evidence, and the Veteran’s own opinion in this regard is nonprobative evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the most probative evidence of record does not support the Veteran’s contentions and, rather, his statements are substantially outweighed by the conclusions set forth in the September 2014 and January 2017 opinions. Additionally, as fully discussed above, the Board finds that his statements regarding the alleged in-service mugging, the only element of the claim with which the parties to the JMPR found fault, are not credible.
In light of the above and in conclusion, the Board finds that service connection for an acquired psychiatric disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the probative evidence is against the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable, and this claim must be denied. 38 U.S.C.A.
§ 5107; 38 C.F.R. § 3.102; Gilbert, supra.

ORDER

Service connection for an acquired psychiatric disorder, to include schizophrenia, depression, and PTSD, is denied.
____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs

14 Questions: VA Disability Benefits Claims

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When a Veteran starts considering whether or not to file a VA Disability Claim, they tend to ask many questions. Over the last ten years, the following are the 14 most common basic questions I am asked about when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog] 

1. What benefits do you get from a VA Disability claim?

You can get several major categories of VA benefits when you file a VA Disability claim. 

  • One category is the “Non-Service Connected Pension,” available to extremely low-income veterans with disabilities. 
  • Another category is education benefits. 
  • A third category is burial benefits. 
  • A fourth category is health care benefits. 
  • And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that originated in military service.

(Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.

  • When it comes to a VA Disability claim for service-connected disabilities, the primary benefit is financial. Once you prove to the VA that your current medical condition, disease, or disability is related to your military service, they will assign a percentage of disability to that condition – using a complicated table and formulas. That percentage of disability translates to a monthly dollar amount. 10% equals one amount….20%, another amount, and so on and so forth.
  • You can look at the current VA Disability claim compensation amounts by clicking here (assuming the Department of Veterans Affairs hasn’t restructured their website, as they commonly do when it gets a little too easy to navigate).
  • In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios you raise in your VA Disability claim. 

Here are just a few:

2. How do I file a VA Disability claim?

It used to be that you could file a VA Disability claim for a service-connected condition, disease, or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the Veteran who wrote his claim on a square of toilet paper while in prison.

This is no longer the case: filing a VA Disability claim has become increasingly complicated, like many other things in this world.

Generally, filing a VA Disability claim requires a series of actions:

Step 1: Filing Phase

You can first file an informal claim for benefits using the required Veterans Affairs Form. If you formalize your claim within one year of that informal claim, the Veterans Affairs treats your informal claim as a formal claim. (You can see where this is headed. One of the things that the Veterans Law Blog works really hard to do is to show you a way to cut through all of this fog and file a VA disability claim that is more likely to get granted, award you the proper benefits, and do so in the shortest time possible.) The rules and steps get goofier and goofier as we go through the steps.

Step 2: Development Phase

You can let the Veterans Affairs develop the evidence to support your claim – officially; they have a Duty to Assist the Veteran in developing certain claims in limited situations. Or, you can be more proactive and develop your OWN claim, filing what is called a “Fully Developed Claim” for VA Benefits. Theoretically, these claims are supposed to be decided more quickly, and for the most part, they are. But by developing your own claim and using the knowledge, information, and tools I share on the Veterans Law Blog, you can set your claim up for more thorough decisions, more proper decisions, quicker decisions, and worst case scenario, if you have to appeal, a better chance at winning your claim on appeal.

Step 3: The Decision Phase

Veterans Affairs will decideC&P (Compensation & Pension) Examinermedical doctor that will decide if your diagnosed conditionhow bad your condition is, percentage-wise
denial or a grant of benefits

4 Pillars of a VA Claim:

  1. Pillar 1: Are you eligible to file a VA Disability claim for compensation benefits
  2. Pillar 2: is the medical condition – or conditions – in your VA Disability claim related to your military service? (This pillar is often called the “service connection” or “nexus” element of your VA Disability claim)
  3. Pillar 3: To what degree does your disability impair your ability to seek and hold work or engage in average daily living activities? I call this pillar the “Impairment Rating.”
  4. Pillar 4: What effective date are you entitled to (it is the effective date that governs how far back in the past your benefits will be retroactive). Some Veterans call this “back-pay” or “past-due benefits,” depending on how long you have been battling the VA. They can often go back decades. A colleague of mine just won a case for a Veteran with service connection granted all the way back to the 1950s, for example.

Step 4: The Administrative Appeal Phase

If you are not satisfied with the VA’s decision in step 3, you can appeal. The first step in the administrative appeal is optional: you can seek a review of your VA Disability Claim by a DRO (Decision Review Officer), or you can “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline. You can get a review by a Veterans Law Judge (VLJ) at the BVA (Board of Veterans Appeals).

  1. You can have that review in an in-person hearing in DC, a video conference hearing from a VA facility near you, or submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it.
        1. Deny your appeal (also known as affirming the VA Denial of your VA Disability claim);
        2. Grant your appeal (also known as reversing the VA Denial of your VA Disability claim).

Step 5: The Court Appeal Phase

Step 6: Judicial Review phase

Suppose you are not satisfied with your CAVC Decision. In that case, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law… I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.

Getting review at the Supreme Court is much harder, and appeals to both courts can be costly filing fees alone at the Federal Circuit cost $500, and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000. Hence, attorneys and Veterans tend to be more conservative about appeals to these courts.

3. When do I file a VA Disability Claim?

Ideally, you want to file your VA disability claim within the first year after leaving service. (Learn about the one VA Program I like – the Benefits at Discharge Delivery, or BDD, Program)

However, most conditions do not get diagnosed for years or decades after service. In those cases, if you are filing an original VA Disability claim (i.e., for the first time), you should file at least the informal claim mentioned above as soon as you suspect your condition is related to military service.

This protects the earliest possible effective date for your VA Disability benefits.

If you are filing a claim for increased compensation, you want to file the claim for increased rating as soon as you believe your condition is worsening.

4. Where do I file a VA Disability claim?

Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.

However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure the VA does not lose it, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).

5. Who Can Help Me with a VA Disability Claim?

Anyone that you trust can help you with a VA Disability claim.

However, nobody can charge you a fee for filing your VA Disability claim – attorneys and accredited agents are only allowed to charge a fee for filing or helping you in your VA Disability claim after the VA has denied the claim.

So, while an illegal immigrant can hire an attorney to fight deportation whenever they can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.

While a criminal charged with a crime has a constitutional right to an attorney, veterans who fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.

Some national organizations, like the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW), and the American Legion (Legion or AL), have what are called “Veteran’s service representatives” or VSOs that volunteer to help with filing initial claims. The quality of work or help you get varies widely, and I’ve seen both extremes: VSOs that do amazing work for free and VSOs that pull the rug out from under their “client” or “member.

Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.

6. How Long Does a VA Disability Claim Take?

The amount of time that it takes for the VA to decide on a VA Disability claim can vary greatly and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.

Here are some general rules:

  • If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim and 121 days (ish) for a non-FDC claim. In 10 years of representing hundreds of Veterans and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.
  • If you are bored or like looking at small numbers on mind-numbingly complicated spreadsheets, click here to see how long claims are currently taking in your geographic region. These spreadsheets are consistent with everything the VA does….hard to understand, loaded with jargon, and obvious number juggling to hide problems in the system. Pour a scotch or glass of wine.
  • Claims for VA disability benefits that are filed with smaller urban and rural VA Regional Offices are faster than VA Disability claims filed with larger metropolitan VA Regional Offices.
  • Once you file an appeal, it can take 3-10 years to get a decision, depending on variables that are too numerous to list here.
  • Veterans can speed up the timeframe by filing well-developed and well-documented Fully Developed Claims, as we teach here on the Veterans Law Blog.

7. How Do I Check the Status of My VA Disability Claim?

That, right there, is the million-dollar question.

The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they can enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzak,” others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers on how to get more value and information out of the call.

The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.

Be careful what you see on eBenefits it’s not always your claim status, it’s not always accurate, and it’s rarely up to date.

8. How Are Benefits in a VA Disability Claim Calculated?

I wish I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating and paid you according to that rating.

But the VA doesn’t do it that way. They use a unique “VA Math” system to “combine” your individual disability ratings into a total. Then they award a monthly compensation amount corresponding to the resulting total impairment rating.

You can read more about impairment ratings here – Veterans have much more control over these ratings than they have been led to believe. I teach Veterans how to improve or maximize their ratings for a TON of conditions – knee/arthritissleep apneaPTSDTinnitusHearing LossFibromyalgia and Chronic FatigueGulf WarMigrainesDiabetesParkinson’s Disease, and many more!

In my 5+ hour video training course, “How to Prove the 4 Pillars of a VA Claim “, I teach Veterans how to prove the 4 Pillars of a VA Claim, including a lot of specific ways to prove the degree of disability you experience and get the highest rating possible.

9. Are VA Disability Benefits Retroactive?

Yes, they are. The question is, “how far do they go back”?

There is a whole set of rules that helps the VA decide how far back in time to go to pay retroactive benefits. These rules are called the effective date rules, and there are hundreds of them.

There are a few general guidelines; it’s not all the rules for every type of VA Disability Claim effective date, but it should give you an idea of how much you have NOT been told about VA disability benefits over the years.

  • In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
  • If you file your VA disability claim within one year of leaving service, your effective date will typically be your date of separation from military service.
  • Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
  • In some cases, if the law changes while you are trying to prove a claim or after you’ve been denied a claim, and your claim is granted pursuant to that change in the law, that makes it easier for you to win (in other words, the change in the law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date.
  • Suppose you reopen a previously denied claim by submitting New and Material Evidence, and you win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim. In that case, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date.
  • Suppose you submit New and Material evidence within one year of the date your rating decision denied your VA Disability claim. In that case, your claim is “open and pending” until the VA issues a new ratings decision. If your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
  • If you are a “Nehmer Class Member,” meaning a veteran exposed to dioxin (aka, Agent Orange in Thailand, Vietnam, Korea, or other places), a whole set of effective date rules apply due to the VA’s settlement of a class action lawsuit in the 1980s. These are called the “Nehmer Rules,” and they can get pretty complicated pretty quick.
  • A survivor who files a claim for survivor benefits (DICservice connection of the cause of death and substitution, for example) will get survivor benefits retroactive to the date of the Veteran’s death if they filed their VA Form 21-534 within one (1) year of the Veteran’s death. If they file the claim for accrued benefits within that year, they may be able to get retroactive benefits paid to the date of any VA Disability claim or appeal pending on the date of the Veteran’s death.

10. Are VA Disability benefits permanent?

I’ll answer this question along with #11.

11. Are VA Disability Benefits Permanent?

Generally speaking, they can be.

If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations; you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits and get an idea how to stop it.

  • The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the Veteran.
  • There are three types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
  • Suppose a VA Disability rating is considered “unprotected.” In that case, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and, if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quickly and do plenty of legwork to understand what is happening and how to stop it.
  • If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10% and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.

12. Are VA Disability Benefits Subject to Child Support?

Yes.

In every state I am aware of, VA Disability benefits are considered income for calculating child support.

Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when military retirement payments offset a portion of your VA Disability benefits. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.

If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple of referrals.

13. Are Benefits From My VA Disability Compensation Claim Taxable?

Nope.

At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation, and/or pension payments are not taxable by the Feds.

As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state by state.

14. What Conditions Are Most Common in a VA Disability Claim?

The VA actually publishes a report of the conditions it service connects, the average ratings for each, and more. Click here to check out the report.

If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Most Common VA Disabilities Claimed for Compensation:   

tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

Scott v. McDonald, 789 F. 3d 1375 – Court of Appeals, Federal Circuit 2015

[ezcol_1half]

789 F.3d 1375 (2015)

Curtis SCOTT, Claimant-Appellant
v.
Robert A. McDONALD, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2014-7095.
United States Court of Appeals, Federal Circuit.June 18, 2015.1376*1376 Jennifer Librach Nall, Baker Botts, LLP, Austin, TX, argued for claimant-appellant. Also represented by Christopher Granaghan, David B. Weaver, Jeffrey S. Gritton, Vinson & Elkins LLP, Austin, TX.
William James Grimaldi, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Joyce R. Branda, Robert E. Kirschman, Jr., Claudia Burke; Y. Ken Lee, Amanda R. Blackmon, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before DYK, MAYER, and REYNA, Circuit Judges.
DYK, Circuit Judge.
Curtis Scott appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying his claim for service connection for hepatitis C. We affirm.

BACKGROUND

Scott served on active duty for training in the United States Marine Corps Reserve from January to July 1972. On November 18, 1999, Scott tested positive for hepatitis C. He applied for disability benefits on February 4, 2005, alleging that he contracted hepatitis C in service. His primary theory was that he was infected with hepatitis C when he received air-gun inoculations during his military service. The Department of Veterans Affairs (“VA”) regional office (“RO”) denied Scott’sclaim for service connection on September 20, 2005.

[/ezcol_1half] [ezcol_1half_end]This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.
Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015):
In this case, the incarcerated Appellant requested a Board hearing and noted that his next potential opportunity for parole was over a year later. The RO scheduled the hearing in the interim and the Appellant did not attend. The Appellant requested a rescheduled hearing, but the Board denied the Appellant’s request and denied the appeal on the merits. The claim was appealed to the CAVC, where the Appellant was represented by counsel. The hearing issue was not raised to the CAVC, but the case was remanded on other grounds. The Board then remanded the case to the RO for additional development while noting that the Appellant “has not renewed his request” for a hearing. The Board eventually denied the claim again. During the second appeal to the CAVC, the Appellant argued that the Board erred by denying him his right to a hearing. The CAVC refused to consider the argument because it had not been raised either in the prior CAVC appeal or to the Board during the intervening proceedings.The Federal Circuit affirmed the CAVC. In doing so, it acknowledged that the doctrine of issue exhaustion was appropriate both before the Board and the CAVC in certain circumstances. However, the Federal Circuit also noted that the Board has a special obligation to read filings liberally, whether submitted by counsel or pro se appellant.
The Federal Circuit then analyzed what constituted a liberal construction for these purposes, stating: “There is a significant difference between considering closely-related theories and evidence that could support [an Appellant’s] claim for disability benefits and considering procedural issues that are collateral to the merits.” The Federal Circuit stated that, for procedural issues, an Appellant’s interest “may be better served by resolution of his claims” rather than by a remand that may not change the final outcome. As a result, the Federal Circuit stated: “Having initially failed to raise the procedural issue, the [Appellant] should not be able to resurrect it months or even years later when, based on new circumstances, the [Appellant] decides that raising the issue is now advantageous.” Accordingly, the Federal Circuit held: “[t]he Board’s obligation to read filings in a liberal manner does not require the Board or the [CAVC] to search the record and address procedural arguments when the [Appellant] fails to raise them before the Board.
This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.
[/ezcol_1half_end]On April 24, 2006, Scott appealed to the Board of Veterans’ Appeals (“Board”) and requested an evidentiary hearing before the Board. See 38 C.F.R. § 20.700(a) (right to a hearing). Scott was incarcerated at the time of his appeal to the Board. On December 6, 2007, the RO sent a letter to Scott, “acknowledg[ing] [his] request for a Video Conference hearing before the Board,” and “request[ing] that [Scott] provide us with the date [Scott is] expected to be released from [his] incarceration so we may schedule [his] video conference hearing accordingly.” J.A. 575. Scott responded to the RO on December 13, 2007, reiterating his request for a hearing and informing the Board that his “minimum expiration parole date for release is January 1377*1377 13, 2017,” and his “next parole review date is scheduled for March of 2009.” J.A. 573. On January 14, 2008, the RO notified Scott that his hearing had been scheduled for March 14, 2008, in Houston, Texas.Scott, who was still incarcerated on the scheduled hearing date, failed to appear for the hearing.

On March 23, 2008, Scott requested a rescheduled hearing because he “could not appear for [his] hearing because of [his] incarceration.” J.A. 826. The Board denied Scott’s request, finding that Scott had “not shown good cause for failing to appear for [his] hearing,” but made no mention of Scott’s incarceration. J.A. 683. The Board subsequently denied Scott’s claim for service connection, noting thatScott “failed to report for his scheduled hearing in March 2008” and that the Board denied his request to reschedule it. J.A. 677.

On appeal to the Veterans Court, Scott, who by this time was represented by counsel, did not raise the hearing issue. The Veterans Court vacated and remanded to the Board due to an inadequate medical examination, without mentioning the hearing issue. In remanding to the RO, the Board noted the hearing issue but that Scott “has not renewed his request” for a hearing. J.A. 221. On November 18, 2011, the RO continued the service connection denial without mentioning the hearing issue. Scott again appealed to the Board via a re-certification of appeal form which checked “YES” in answer to “WAS HEARING REQUESTED?”, but Scott did not raise the hearing issue with the Board. J.A. 183. The Board affirmed, again noting that Scott “has not renewed his request” for a hearing. J.A. 16.

On appeal to the Veterans Court, on July 26, 2013, Scott raised the hearing issue for the first time since his March 23, 2008, request for a rescheduled hearing. The Veterans Court affirmed, holding that Scott “did not raise this [hearing] issue in either proceeding,” referring to Scott’s prior appeal to the Veterans Court and his current appeal before the Board. J.A. 1-2. The Veterans Court held that raising the hearing issue at this late stage “amounts to an effort to engage in undesirable piecemeal litigation, and [Scott] provides no compelling basis to permit it.” J.A. 2.Scott appeals. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). We review legal determinations of the Veterans Court de novo. Moffitt v. McDonald, 776 F.3d1359, 1364 (Fed.Cir.2015).

DISCUSSION

I

The Supreme Court has recognized the importance of issue exhaustion with respect to administrative tribunals. In United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), the Court held that “orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while [the agency] has opportunity for correction in order to raise issues reviewable by the courts,” such that “as a general rule … courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” Id. at 37, 73 S.Ct. 67.[1] But Scott argues that the Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), precludes 1378*1378 application of the issue exhaustion doctrine in the context of veterans benefits because proceedings before the VA are non-adversarial in nature.

We addressed this issue even before the Supreme Court’s decision in Sims, inMaggitt v. West, 202 F.3d 1370 (Fed.Cir.2000). We articulated a case-by-case balancing test for issue exhaustion in the VA system: “The test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy v. Madigan, 503 U.S. 140, 146, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). We remanded to the Veterans Court to determine, inter alia, “whether invocation of the exhaustion doctrine [was] appropriate” with respect to the veteran’s request to reopen his claim for service connection based on constitutional and statutory arguments that he had not raised before the Board. Id. at 1378-79.

Thereafter, in Sims, the Supreme Court addressed issue exhaustion in the context of Social Security Administration (“SSA”) benefits. The Court noted that “SSA regulations do not require issue exhaustion.” 530 U.S. at 108, 120 S.Ct. 2080. When that is so, “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Id. at 109, 120 S.Ct. 2080. A plurality of the Court concluded that “[t]he differences between courts and agencies are nowhere more pronounced than in Social Security proceedings,” such that “a judicially created issue-exhaustion requirement is inappropriate.” Id. at 110, 112, 120 S.Ct. 2080. But the majority also recognized that “it is common for an agency’s regulations to require issue exhaustion in administrative appeals. And when regulations do so, courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.” Id.at 108, 120 S.Ct. 2080 (citations omitted). Justice O’Connor’s concurrence also made clear that Sims does not apply, and exhaustion is required, where applicable statutes or regulations impose an exhaustion requirement. See id. at 113, 120 S.Ct. 2080 (O’Connor, J., concurring). Thus, in light of Sims, we must determine the extent to which statutes or agency regulations require issue exhaustion in the veterans benefits context.

In previous veterans’ cases we have considered issue exhaustion in three specific contexts and have held that the statutes and regulations require issue exhaustion in appropriate circumstances. First, in an appeal from the RO to the Board, 38 C.F.R. § 20.202 specifically requires that the errors by the RO be identified either by stating that all issues in the statements of the case are being appealed or by specifically identifying the issues being appealed.[2]See Robinson v. Shinseki,557 F.3d 1355, 1361 (Fed.Cir.2009) (“We … do not suggest that under the regulations 1379*1379 the veteran is entirely relieved of his or her obligation to raise issues in the first instance before the VA where the record is being made. The regulations quite clearly impose such an obligation even in direct appeals….” (citing 38 C.F.R. § 20.202)).

Second, where the alleged error was made by the Board, we have held that the statute, 38 U.S.C. § 7252(a), requires issue exhaustion before the Board in appropriate circumstances.[3]See Ledford v. West, 136 F.3d 776, 779-80 (Fed.Cir.1998) (Under § 7252, “the [Veterans C]ourt’s jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed,” and “while the doctrine of exhaustion of administrative remedies is not jurisdictional,” exhaustion is normally required.). Thereafter, in Maggitt, we held that exhaustion was not required in all cases, distinguished Ledford, and concluded that “[n]othing in the statutory scheme providing benefits for veterans mandates a jurisdictional requirement of exhaustion of remedies which would require the Veterans Court to disregard every legal argument not previously made before the Board.” See202F.3d at 1376-77. As noted above, “the test is whether the interests of the individual weigh heavily against the institutional interests the doctrine exists to serve.” Id. at 1377 (citing McCarthy, 503 U.S. at 146, 112 S.Ct. 1081).

In Bernklau v. Principi, 291 F.3d 795 (Fed.Cir.2002), decided after Sims, we upheld the Veterans Court’s application of issue exhaustion to arguments that the veteran had failed to raise before the Board, holding that Maggitt did not require an explicit balancing of interests in the individual case. See id. at 799, 801-02. We held that new arguments for an earlier effective date based on past events allegedly supporting an informal claim for individual unemployability “TDIU” were properly rejected as not raised before the Board. See id. at 800-02.[4]

Third, in an appeal from the Veterans Court to this court we have held that 38 U.S.C. § 7292(a) requires issue exhaustion at the Veterans Court level.[5] InBelcher v. 1380*1380 West, 214 F.3d 1335 (Fed.Cir.2000), we explained that “38 U.S.C. § 7292(a) speaks directly to the requirement of issue exhaustion.” Id. at 1337 (citing Sims, 530 U.S. at 106-09, 120 S.Ct. 2080). In Belcher, the veteran raised an argument for the first time on appeal to this court that the Veterans Court failed to follow a VA regulation relating to service connection. Id. at 1336. We declined to consider the argument, holding that we lacked jurisdiction to hear it because it was not addressed by or presented to the Veterans Court. Id. at 1337.

The statutes and regulations thus impose a requirement of issue exhaustion in appropriate circumstances. While the requirement of exhaustion is relatively strict in proceedings before the Veterans Court, we have concluded that the non-adversarial nature of proceedings before the VA mandates a less strict requirement, as we now discuss.

II

In view of the non-adversarial nature of proceedings before the Board, it is appropriate in the first and second situations listed above that the Board and the Veterans Court give a liberal construction to arguments made by the veteran before the Board, as is specifically required by § 20.202 of the regulations in the case of appeals from the RO to the Board. “In various decisions we have made clear that the Board has a special obligation to read pro se filings liberally.”Robinson, 557 F.3d at 1358-59. In Robinson, we held that this obligation extends to cases in which the veteran is represented by counsel. See 557 F.3d at 1359-60. This obligation extends to all proceedings before the Board. It follows from the test articulated in Maggitt. See 202 F.3d at 1377.

Our prior cases have illuminated what is required by a liberal construction. In Roberson v. Principi, 251 F.3d 1378 (Fed.Cir. 2001), the Veterans Court affirmed the Board’s service-connection denial because the veteran had failed to allege TDIU. Id. at 1382. We held, in the context of clear and unmistakable error (“CUE”) claims, that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” Id. at 1384 (quoting Hodge v. West, 155F.3d 1356, 1362 (Fed.Cir.1998)). Thus, “[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the `identify the benefit sought’ requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU.” Id.

In Comer v. Peake, 552 F.3d 1362 (Fed. Cir.2009), we held that where the veteran made a claim for service connection and record evidence supported total disability based on TDIU benefits, the Board was required to consider that evidence as a TDIU claim even though the veteran had not specifically raised a TDIU claim. See id. at 1366-69. Comer held that the requirement to liberally construe a veteran’s arguments extended to arguments that were “not explicitly raised” before the Board. Id. at 1366.

Similarly, in Robinson, we held that where the veteran made a claim for service connection and record evidence supported secondary service connection, the Board was required to consider that evidence as a claim for secondary service connection even though the veteran had not specifically raised secondary service connection. 1381*1381 See Robinson, 557 F.3d at 1361-62; see also Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed.Cir.2011) (“In light of the Board’s obligations to read veterans’ submissions liberally and to consider the full context within which those submissions are made, we conclude that section 7105(d)(3) does not impose such a[n explicit statement] requirement, at least in the context of a case involving the single factual question of the sufficiency of the veteran’s evidence to reopen a claim.”).

Roberson, Robinson, and Comer thus require the Veterans Court to look at all of the evidence in the record to determine whether it supports related claims for service-connected disability even though the specific claim was not raised by the veteran. They also require that veterans’ procedural arguments be construed liberally, but those cases do not go so far as to require the Veterans Court to consider procedural objections that were not raised, even under a liberal construction of the pleadings.

There is a significant difference between considering closely-related theories and evidence that could support a veteran’s claim for disability benefits and considering procedural issues that are collateral to the merits. As to the former, the veteran’s interest is always served by examining the record for evidence that would support closely related claims that were not specifically raised. As to procedural issues, that is not always the case. A veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution. Under such circumstances, the failure to raise an issue may as easily reflect a deliberate decision to forgo the issue as an oversight. Having initially failed to raise the procedural issue, the veteran should not be able to resurrect it months or even years later when, based on new circumstances, the veteran decides that raising the issue is now advantageous. For this reason, absent extraordinary circumstances not apparent here, we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran, though at the same time giving the veteran’s pleadings a liberal construction.

In short, we hold that the Board’s obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the veteran fails to raise them before the Board. Under the balancing test articulated in Maggitt, the VA’s institutional interests in addressing the hearing issue early in the case outweigh Scott’s interests in the Veterans Court’s adjudication of the issue.

A review of Scott’s pleadings to the Board confirms that Scott did not raise the hearing issue in his current appeal to the Board. The regulations do not require that the Board or the Veterans Court address the veteran’s argument that the Board erred in not providing him with a hearing.

AFFIRMED

COSTS

No costs.

[1]See also Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) (“Ordinarily an appellate court does not give consideration to issues not raised below…. And the basic reasons which support this general principle applicable to trial courts make it equally desirable that parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding.”).

[2] Section 20.202 provides, in relevant part:

If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed.

38 C.F.R. § 20.202; see also 38 U.S.C. § 7105(d)(3) (“The appeal [to the Board] should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified.”).

[3] Section 7252(a) provides: “The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals…. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.” 38 U.S.C. § 7252(a).

[4]Scott relies on cases from other circuits which held that issue exhaustion did not apply to various agency proceedings. But none of these cases involved a statute or regulation that specifically imposed an issue exhaustion requirement. See Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1081 (9th Cir. 2013) (declining to apply issue exhaustion to an appeal from the Surface Transportation Board because the “administrative process lacks an adversarial component” with no mention of a statute or regulation requiring otherwise); Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 630 (9th Cir.2008) (“No ERISA statute precludes courts from hearing objections not previously raised … nor does any ERISA statute or regulation require claimants to identify all issues they wish to have considered on appeal.”); Coalition for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 463 (6th Cir.2004) (“In considering whether the district court properly imposed an issue exhaustion requirement in the case sub judice, we initially observe that such a requirement exists in neither [the agency’s] organic statute nor its regulations.”).

[5] Section 7292(a) provides, in relevant part:

After a decision of the [Veterans Court] is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation… or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.

38 U.S.C. § 7292(a).

Entitlement To Service Connection For Sleep Apnea, To Include As Secondary To Ptsd Granted

[no_toc]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

THE ISSUES

  1. Whether new and material evidence has been received to reopen a claim of service connection for a left ankle disability.
  2. Entitlement to service connection for a left knee disability.
  3. Entitlement to service connection for a right knee disability.
  4. Entitlement to service connection for a lung disability.
  5. Entitlement to service connection for a right shoulder disability.
  6. Entitlement to service connection for a right hip disability.
  7. Entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder (PTSD).
  8. 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.
  9. Entitlement to a rating in excess of 20 percent since February 9, 2012 for degenerative disc disease of the lumbosacral spine with lumbar strain.
  10. Entitlement to a rating in excess of 10 percent for evulsion fracture of the left hip.
  11. Entitlement to a rating in excess of 10 percent for stress headaches.
  12. Entitlement to a rating in excess of 30 percent for irritable bowel syndrome.
  13. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION
Appellant represented by: Paul M. Goodson, Attorney WITNESSES AT HEARING ON APPEAL Appellant & SpouseATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel

INTRODUCTION

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.