Citation Nr: 0811812 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-31 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the hips, claimed as a leg condition. 2. Entitlement to service connection for a bilateral foot disability, to include as manifested by a burning sensation. 3. Entitlement to service connection for a disability manifested by hand tremors, to include as secondary to the veteran's service-connected residuals of a skull fracture, including organic personality and mood disorders. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran had active service from July 1973 to December 1982. The veteran had Reserve duty thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the benefits sought on appeal. The veteran had an RO hearing scheduled for March 2004. The veteran, through his representative, cancelled this hearing. The Board notes that the veteran is in receipt of a total disability rating based on individual unemployability (TDIU). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The Board finds that additional development is required before the issues on appeal are ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2007). The record now contains an October 2007 letter from a private physician (Dr. SCM) that was submitted after the last issued supplemental statement of the case (SSOC). The veteran has not waived initial review of this evidence by the agency of original jurisdiction (RO). The AMC/RO must issue an SSOC that includes consideration of all the evidence of record received after the last SSOC. See 38 C.F.R. §§ 19.31, 19.37 (2007). The Board also recently received a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. On this document the veteran has listed several medical care providers. It is unclear from the record whether VA has obtained all available records regarding the issues on appeal from these medical care providers. As such records are potentially relevant to all three issues on appeal, the AMC/RO should make reasonable efforts to obtain these and all other relevant records that have not been previously obtained. See 38 C.F.R. § 3.159(c)(1) (2007). Regarding the veteran's claimed disability manifested by hand tremors, the Board notes that the veteran has asserted, in essence, that he has a chronic disability manifested by hand tremors that is secondary to his service-connected residuals of a skull fracture, including organic personality and mood disorders. Under 38 C.F.R. § 3.310 (a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service- connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted (see 71 Fed. Reg. 52744 (2006)) which essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice- connected disease or injury must be established by medical evidence created before the onset of aggravation. There is no indication that the RO fully considered the claim for secondary service connection for a disability manifested by hand tremors, to include the law and regulation applicable to claims for secondary service connection, including the recent amendment to 38 C.F.R. § 3.310. Separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability. Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Robinson v. Mansfield, .No. 04-1690 (U.S. Vet. App. January 29, 2008). However, upon remand, the veteran must be informed of the evidence needed to substantiate service connection on a secondary basis and be provided with a copy of 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. See 38 C.F.R. § 19.9. The further notes that, with respect to the claim for secondary service connection for a disability manifested by tremors, a 70 percent rating is currently in effect for residuals of a skull fracture with organic personality and mood disorders and memory impairment. In a September 2007 statement, the veteran contended that whenever he is stressed, he starts to experience a tremor and the more that he is stressed, the worse this becomes. He also indicated that this affects his ability to drive. Private medical records document the veteran's complaints and treatment for tremors. In a January 2005 private psychiatric treatment record, a clinician reported that the veteran had a mild tremor and had complaints of numbness and paresthesia in his upper extremities. The clinician also indicated that the veteran was being evaluated to determine whether there was a cardiovascular component to these symptoms, such as transient ischemic attacks. In October 2007, the clinician indicated that the veteran had PTSD and that this disability "strongly influences [the veteran's] emotional composure and his disease of essential tremor." The clinician opined that these disabilities were related to service. Earlier, in a September 2007 letter, the same clinician indicated that the veteran had tremors that worsened as the veteran becomes stressed. Service connection is not in effect for PTSD. Service connection for PTSD was denied in a July 1990 rating decision, and the veteran did not appeal this decision. See 38 U.S.C.A. § 7105. A claim for service connection for PTSD is not presently before the Board. In view of the foregoing, the Board finds that the veteran should be afforded a VA psychiatric examination to determine the nature and etiology of the claimed disability manifested by hand tremors, to include obtaining an opinion as to whether the veteran has a separate and distinct disease or disability manifested by tremors and, if so, whether it was caused or aggravated by his service-connected residuals of a skull fracture, including organic personality and mood disorders. 38 C.F.R. § 3.310; 71 Fed. Reg. 52744; Allen, supra. In addition, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA by issuing the veteran an additional notification letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. The notification letter should inform the veteran of the evidence needed to substantiate the underlying claims. Specifically, the letter should: (a) inform the veteran about the information and evidence not of record that is necessary to substantiate the claims for the benefits sought; (b) inform the veteran about the information and evidence that VA will seek to provide; (c) inform the veteran about the information and evidence the veteran is expected to provide; and (d) request that the veteran provide any evidence in the veteran's possession that pertains to the claims. The AMC/RO should provide the veteran with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the benefits sought as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran must also be notified of the information and evidence needed to substantiate a claim for secondary service connection. The veteran should be provided with a copy of 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. 2. All VA medical examination and treatment reports, and any private medical records that have not been obtained, which pertain to the claim on appeal must be obtained for inclusion in the record. Specifically, the AMC/RO should make all reasonable efforts to obtain the records noted in the VA Form 21-4142 received by the Board in March 2008. 3. The veteran should be scheduled for a VA neurological examination to determine the nature, extent and etiology of his claimed disability manifested by hand tremors. The claims file should be sent to the examiner for his or her review. Following the review of the relevant evidence in the claims file, the clinical examination and any tests or diagnostic studies deemed necessary, the examiner should provide answers to the following: a) Is it at least as likely as not (50 percent or greater probability) that the veteran has a disease or disability manifested by hand tremors that is separate and distinct from his service-connected residuals of a skull fracture, including organic personality and mood disorders? b) If the answer to (a) is in the affirmative, is it at least as likely as not (50 percent or greater probability) that the veteran's disease or disability manifested by hand tremors began during service or is causally linked to some incident of service? c) If the answer to (a) is in the affirmative, is it at least as likely as not (50 percent or greater probability) that the veteran's disease or disability manifested by hand tremors was caused or aggravated by his service- connected residuals of a skull fracture, including organic personality and mood disorders? The clinician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship or a finding of aggravation; less likely weighs against the claim. The clinician is also advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. The examiner is requested to provide a rationale for any opinion provided. If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate. If the veteran's disability manifested by tremors was aggravated by the veteran's service-connected residuals of a skull fracture, to include organic personality and mood disorders, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the disability manifested by hand tremors (e.g., slight, moderate) before the onset of aggravation. 4. Thereafter, the veteran's claim for service connection for a chronic disability manifested by hand tremors must be adjudicated on direct and secondary bases with consideration of all of the relevant evidence of record and all applicable legal authority, to include 38 C.F.R. § 3.310 and Allen, supra. The claims for service connection for degenerative arthritis of the hips, claimed as a leg condition, and a bilateral foot disability, to include as manifested by a burning sensation, must be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative must be provided with a supplemental statement of the case. This supplemental statement of the case must include 38 C.F.R. § 3.310 and the amendment to that regulation, effective October 10, 2006. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain evidentiary development and to preserve the veteran's due process rights. No inference should be drawn as to the outcome of this matter by the actions herein requested. The veteran's appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2007), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the veteran's appeal. 38 C.F.R. § 20.1100(b) (2007).