Citation Nr: 1007387 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-31 034 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a disability manifested by a pinched artery of the neck, to include as secondary to service-connected post-stress disorder (PTSD). 2. Entitlement to a total rating based on unemployability due to the severity of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from August 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the VARO in San Diego, California, and Honolulu, Hawaii, that, in pertinent part, denied entitlement to the benefits sought. The only issues for consideration by the Board at this time are those listed on the title page. FINDINGS OF FACT 1. There is no competent medical evidence of a disability manifested by a pinched artery during service or for years thereafter. There is no competent evidence that any current disability manifested by a pinched artery is causally or etiologically related to the Veteran's service or his service-connected PTSD. 2. The Veteran's PTSD, rated 70 percent disabling, is his only service-connected disability. 3. The service-connected PTSD reasonably precludes the Veteran from performing substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by a pinched artery of the neck, to include as secondary to PTSD, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 2. The criteria for entitlement to a TDIU are reasonably met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159 and 3.326 (a) (2009). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b) VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Based upon the grant of benefits with regard to TDIU the Board finds there is no need to discuss in detail the various requirements of the VCAA with regard to this issue. The Board notes that a longitudinal review of the record shows that VA has essentially complied with the statutory mandates of the VCAA with regard to this issue. With regard to the service connection issue, the Board notes 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 elements are: (1) Veteran status; (1) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) the effective date of the disability. In various letters, including one dated in May 2006, the Veteran was informed about the information and evidence not of record necessary to substantiate his claim; the information and evidence VA would seek to provide; and the information and evidence he was expected to provide. He was also informed how VA determines a disability rating and an effective date once service connection is established as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist the Veteran, the Board notes that the service treatment records and that the medical records are in the claims file. The Veteran's representative asked that the Veteran be accorded a rating examination with regard to the claimed neck disability. The Veteran has not been accorded an examination of the service-connected issue. The Board is aware that in accord with VA regulations, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurring symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence is on file for the Secretary to make a decision in the claim. See 38 C.F.R. § 3.159 (c) (4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, there is no evidence of complaints or abnormalities with regard to the neck during service and no competent medical evidence indicating a link between any current disability manifested by a pinched nerve of the neck and the Veteran's active service. In these circumstances, there is no duty to provide a VA examination. See 38 C.F.R. § 3.159 (c) (1). See also McLendon, supra. In view of the forgoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claims under consideration. Adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Pertinent Legal Criteria for Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Subsequent manifestations of a chronic disease in service, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection may also be granted for disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease process occurred in service. 38 U.S.C.A. § 3.303 (d). Pursuant to 38 C.F.R. § 3.310 (a), a "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." Evans v. Brown, 12 Vet. App. 22, 29 (1998) (Noting requirements for establishing service connection are on a secondary basis). In order to establish secondary service connection, the Veteran must show: (1) the existence of a current and secondary disability; (2) the existence of a service- connected disability; and (3) evidence that the service- connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310 (a). A Veteran may also establish secondary service connection by demonstrating that his secondary disability became aggravated or worsened by the already service-connected disorder. Allen v. Brown, 439, 448 (1995) (holding that "when aggravation of a Veteran's nonservice-connected [secondary] condition is proximately due to or the result of his service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation"); Libertine v. Brown, 9 Vet. App. 521, 522 (1996) (Additional disability resulting from the aggravation of a nonservice- connected [secondary] condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (a)). If the Veteran succeeds in establishing service connection for a secondary disorder, "that secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310 (a). The United States Court of Appeals for Veterans Claims (Court) has held that for service connection to be awarded, there must be: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005); Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). If the Veteran fails to demonstrate any one element, denial of service connection will result. Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or in his behalf. See Gonzales v. West, 218 F.3d 1378, 1380 (Fed. Cir. 2000). (The Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). (The law requires only that the Board discuss its reasons for rejecting evidence favorable to the Veteran). Service connection is in effect for PTSD. A 70 percent rating has been in effect since April 8, 2003. The service treatment records reveal no complaints or findings indicative of the presence of a disability involving the neck. At the time of separation examination, there was no indication of the presence of a disability of the neck, to include a pinched artery in the neck region. The records include an X-ray study of the cervical spine at a service department facility in April 1970. The vertebral bodies and intervertebral disc spaces were normal. The joints showed minimal spurring with no impingement of the vertebral foramen. There appeared to be a normal cervical spine. At the time of separation examination in May 1972, clinical evaluation revealed a normal spine. Post service medical records reveal treatment and evaluation for various complaints in the 1980's and 1990's, with no reference to complaints or findings indicative of the presence of a chronic neck disability, to include a pinched artery of the neck. The evidence includes private medical reports, including one dated in September 2002. At that time the Veteran was being seen for an unrelated disorder. Physical examination revealed no adenopathy or other abnormality involving the neck. Evaluation at a private facility in September 2003 for what was apparently a seizure revealed no abnormalities of the neck. The neurological system was described as intact. The records contain a VA neurology follow-up visit report dated in November 2007. At that time the examiner indicated he had seen the Veteran on two occasions in May 2004 for syncope while driving. Magnetic resonance imaging showed incomplete visualization or partial visualization of the right vertebral artery. There was also nonvisualization of the origin of the right posterior cerebral artery from the basilar artery. The consultation in November 2007 revealed what was reported as a normal variant of the circle of Willis. There were no signs or symptoms of posterior circulation difficulties. There was no objective evidence of a pinched artery of the neck. The Veteran maintains that the firing of weapons in service was likely what caused him to have what he called a smashed artery. However, based on a longitudinal review of the evidence, the Board finds that the Veteran's assertion is not substantiated. While the Board does not doubt the sincerity of the Veteran's current belief that he has a pinched artery of the neck that has either been present since his days in service or is related in some way to his service-connected PTSD, the evidence contains some inconsistencies questioning the reliability of the Veteran's current recollections. For some reason he failed to complain of any neck problems on a number of occasions over the years following service when he was seen for medical evaluation purposes. The service treatment records fail to identify any neck abnormality. He does not offer any theory as to how any current pinched nerve in the neck is somehow related to his service connected PTSD. The Board finds then that the Veteran is not credible to the extent that any current pinched artery of the neck is attributable to his military service, to include his service- connected PTSD. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). The claim with regard to this issue is therefore denied. TDIU A total rating based on unemployability due to service- connected disabilities may be granted if the service- connected disability or disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there should be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined disability rating to 70 percent. 38 C.F.R. § 4.16 (a). The essential inquiry is "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. § 38 C.F.R. § 3.341, 4.19; VanHoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternative way to obtain a total disability rating without recourse to a 100 percent evaluation under the Rating Schedule. The Veteran is in receipt of service connection for PTSD with an evaluation of 70 percent. He is not service connected for any other disability. At issue is whether the Veteran's PTSD alone is so incapacitating that it precludes the Veteran from obtaining and maintaining some form of substantially gainful employment. The record includes the report of a VA outpatient visit in January 2008 at which time the Veteran expressed frustration and anger with regard to his compensation claim. He expressed no plans or specific thoughts of suicidal ideation or homicidal ideation. Affect was generally flat. His mood was calm. He was to continue with weekly therapy. Several months earlier, in May 2007, the Veteran was seen in outpatient consultation complaining of sleep difficulties, night sweats, flashbacks, and difficulties with his relationship with his wife. Although he was able to play golf twice a week as "therapy", he indicated he had few friends and he was reported as being somewhat isolative. Other than a mildly constrictive affect, and admitting to a past history of periodic suicidal ideation, observation was essentially unremarkable. Axis I diagnoses were PTSD and Nicotine dependence. He was given a Global Assessment of Functioning score (GAF) of 55. While the reports of these visits do not reflect total social and occupational impairment or present a picture of someone unable to perform any type of gainful employment, other evidence includes reports of several different visits with a VA physician in 2003 and 2004. That health care professional advised the Veteran not to work in order to avoid losing control. The Veteran was in supportive therapy and was taking psychotropic medication. It was noted the Veteran met the criteria for a diagnosis of PTSD and was experiencing symptoms such as sleep disturbance, elevated arousal (anxiety and anger), avoidance of reminders, and intrustive thoughts. The physician noted the Veteran had had difficulties with his job with the Postal service for many years "and was happy to take early retirement as soon as it was offered." What the physician seems to be saying is that the Veteran would experience a worsening in his psychiatric symptomatology should he return to some form of gainful employment. Thus, while the more recent evidence indicates the Veteran seems to be doing better, it appears that this is partially because he is not working and the physician in 2004 was in favor of his not working so as to keep him able to function. A May 2005 report prepared for the Social Security Administration (SSA) by the Veteran's VA physician since 2001 opined that the veteran was not capable of maintaining regular job attendance and persisting at simple, repetitive work tasks on a consistent basis under ordinary supervision, noting that the Veteran "had a simple job [with] Post Office and he had to stop." In addition, he noted that no significant change was likely, explaining that "PTSD is a chronic illness, unlikely to change." In view of the foregoing, particularly with the resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected PTSD renders him unable to obtain or maintain substantially gainful employment. Accordingly, entitlement to TDIU is warranted. ORDER Service connection for a disability manifested by a pinched artery in the neck, to include as secondary to PTSD, is denied. To this extent, the appeal is denied. TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. To this extent, the appeal is allowed. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs