Citation Nr: 1300775 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-35 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for cold injuries of the bilateral lower extremities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1964 to February 1966. He is the recipient of the Combat Infantry Badge and the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to TDIU addressed in the REMAND portion of the decision below requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran does not have a current diagnosis of cold injuries of the bilateral lower extremities, or persistent or recurrent symptoms related to such a disability. CONCLUSION OF LAW Cold injuries of the bilateral lower extremities was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist 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 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a May 2008 letter, sent prior to the October 2008 rating decision which gave rise to this appeal, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, this letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment reports (STRs), as well his post-service treatment records, have been obtained. The post-service treatment records associated with the claims file are silent for complaint, treatment, or diagnosis of a cold injury of the lower extremities. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In service connection claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 recurrent symptoms of a disability may be associated with the Appellant's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that a VA examination with nexus opinion is not necessary with respect to the claim for service connection for cold injuries of the bilateral lower extremities as he does not have a current diagnosis of cold injuries of the lower legs or competent and credible indication he has present disability as a residual or consequence of this type of trauma during his active duty military service. Moreover, he has not provided any statements regarding his right or left lower leg symptoms, and the medical evidence of record is unremarkable for any present complaints, treatment, or diagnoses referable to this claimed disability. Therefore, as there is no evidence of a current diagnosis or persistent or recurrent symptoms of this claimed disability, the Board finds that an examination and opinion are not warranted. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (discussing the circumstances when a VA examination and opinion are required). In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the claim adjudicated herein; at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of the claim for service connection for cold injuries of the lower extremities. II. Analysis The Board has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence or correspondence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 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. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. 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. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be present. 38 U.S.C.A. § 1110. The Court has noted that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Id. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In his notice of disagreement, the Veteran asserted that he sustained cold weather injuries of the lower extremities and specifically referenced treatment for such injuries in 1965 at Fort Devens, Massachusetts. Review of the STRs do reflect treatment at Fort Devens, but none of these reports reflect treatment for a cold weather injury of the lower extremities. The remaining STRs, to include the reports from the January 1966 separation examination and medical history collected at that time, also do not reflect any evidence of a cold weather injury. The Veteran did not refer to a cold injury in his original application for VA benefits filed in 1966. Reports from a December 1966 VA examination conducted in conjunction with this claim contain no reference to a cold injury, nor do the reports from subsequent VA examinations conducted in December 2007, September 2008, and February 2009. VA outpatient treatment reports dated through October 2008 do not reflect any evidence of a cold injury to the lower extremities, and the "problem lists" recorded therein do not reflect such an injury. The Board observes that such treatment records reference pain in the joint involving lower leg on the "problem lists"; however, such appears to be in reference to the Veteran's service-connected residuals of a gunshot wound to the right thigh. There is no indication that the Veteran has sought treatment for complaints referable to the lower extremities separate from such service-connected disability. Based on the foregoing, the Board finds that the Veteran does not have a current diagnosis of a cold injury to the lower extremities, or persistent or recurrent symptoms related to such disability. While the Veteran is competent to report complaints related to a cold weather injury, the Board does not find that the Veteran has credibly presented such complaints. In weighing the credibility of these complaints, 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 (1995). In the instant case, the Veteran did not refer to having the disability at issue in his original claim for benefits filed in 1966, and it was not until May 2008, over forty years after service, that he alleged that he sustained a cold weather injury of the lower extremities during service. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Also casting doubt on the Veteran's credibility is the fact that his statements to medical professionals as reflected in the clinical record, which were made for neutral (treatment/evaluation) purposes, contain no reference to the disability at issue, whereas his statements to VA adjudicatory personnel asserting a cold weather injury disability of the lower extremities were made in contemplation of the receipt of monetary benefits. Based on the foregoing, the most probative and credible evidence of record demonstrates that, for the entire period since the claim has been pending, there is no clinical or credible evidence of a current disability due to cold weather injury of the lower extremities, or persistent or recurrent symptoms related to such disability. Therefore, service connection for cold injuries of the lower extremities 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 evidence is against the Veteran's claim of entitlement to service connection for cold injuries of the bilateral lower extremities. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. ORDER Service connection for cold injuries of the bilateral lower extremities is denied. REMAND Regarding the Veteran's claim of entitlement to a TDIU, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide his claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the claim for TDIU, the Veteran currently meets the schedular criteria for this benefit. See 38 C.F.R. § 4.16(a). Specifically, he is service-connected for posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling; residuals of a through-and-through gunshot wound to the right shoulder and triceps, evaluated as 30 percent disabling; and residuals of a gunshot wound to the right thigh, evaluated as 30 percent disabling. His combined disability evaluation is 90 percent. The Board observes that the term unemployability, as used in VA regulations governing TDIU, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). Therefore, the issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran's representative in his December 2012 presentation to the Board requested that this claim be remanded in order to afford the Veteran a VA examination that includes an opinion as to whether he is unemployed due to his service-connected disabilities; namely, PTSD, residuals of a gunshot wound of the right shoulder, and residuals of a gunshot wound of the right thigh. Unfortunately, the Veteran's representative's assertion that that record does not contain an adequate opinion as to whether the Veteran's service connected PTSD and gunshot wounds, in combination, preclude him from securing or maintaining substantially gainful employment is correct. As such, the Board finds that, on remand, the Veteran should be scheduled for appropriate VA examination to determine the impact of his service-connected disabilities on his employability in order to fulfill the duty to assist. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Additionally, as this claim is being remanded, the Board finds that the Veteran should be provided an opportunity to identify any records of treatment for his service-connected disabilities. Thereafter, all identified records, to include VA treatment records from the North Texas Healthcare System dated from October 2008 to the present, should be obtained for consideration in his appeal Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding treatment records regarding his service-connected disabilities. After securing any necessary authorization forms, obtain all identified records not already contained in the claims file, to specifically include VA treatment records from the North Texas Healthcare System dated from October 2008 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding treatment records, schedule the Veteran for appropriate VA examination to determine the impact of his service-connected disabilities on his employability. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical and occupational history, if possible. Based on a review of the Veteran's claims file, the results of the examination, and the Veteran's statements regarding his service-connected PTSD and gunshot wounds of the right shoulder and right thigh, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected disabilities, alone or in combination, preclude him from securing or maintaining substantially gainful employment. The examiner is advised that neither the Veteran's non-service-connected disabilities nor his age may be considered in determining whether he is unemployable solely as a result of his service-connected disabilities. A complete rationale must be provided for any opinions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs