Citation Nr: 1311269	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  07-19 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

3.  Entitlement to service connection for a left ankle disability, to include as due to service-connected residuals of a trimalleolar right ankle fracture.

4.  Entitlement to an extension of a temporary total rating (TTR) after July 23, 2008 for residuals of a trimalleolar right ankle fracture based on surgical treatment necessitating convalescence.

5.  Entitlement to a rating in excess of 30 percent for residuals of a trimalleolar right ankle fracture prior to March 17, 2010 (from February 1, 2009 through March 16, 2010).

6.  Entitlement to a rating in excess of 40 percent for residuals of a trimalleolar right ankle fracture from March 17, 2010 through June 7, 2011 and from September 1, 2011, to include on an extraschedular basis.

7.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel


INTRODUCTION

The Veteran served on active military duty from July 1963 to August 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  A June 2006 decision reopened a previously denied claim for service connection for PTSD and denied the claim on the merits.  An April 2007 decision denied the claim for service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability. 

Regarding the claim for service connection for PTSD, as is discussed in more detail below, the medical evidence of record also indicates that the Veteran has been diagnosed with adult attention deficit disorder with childhood onset, dysthymic disorder and depression, anxiety disorder, possible bipolar disorder, and polysubstance dependence in full sustained remission.  Although not claimed by the Veteran, the Board has expanded his original claim to include all psychiatric disorders.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is).
 
A December 2008 decision granted a temporary rating of 100 percent (a temporary total rating) effective July 23, 2008 based on surgical treatment requiring convalescence for the right ankle disability and assigned a 20 percent rating for the right ankle disability effective February 1, 2009.  The Veteran disagreed with the 20 percent rating assigned effective February 1, 2009, and the RO issued a statement of the case in August 2009.  In a September 2009 rating decision, the RO increased the assigned rating for the right ankle disability to 30 percent effective February 1, 2009.  

In a July 2010 rating decision, the RO denied an extension beyond January 31, 2009 of a temporary total rating based on surgical treatment requiring convalescence for the right ankle disability.  The decision also increased the assigned rating for the right ankle disability to 40 percent effective March 17, 2010.  The Board notes that a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, this issue of higher ratings for a right ankle disability remains on appeal.  

Also, as explained in further detail in the remand below, in correspondence received in August 2010 and in statements elsewhere in the record, the Veteran has asserted that he is unable to work in his usual occupation as a nurse due to his service-connected right ankle disability; the appeal has now been expanded to include the matter of the Veteran's entitlement to a TDIU due to his service-connected disabilities.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The RO issued a statement of the case (SOC) in January 2011 addressing the issues of (1) the evaluation of residuals of a trimalleolar fracture of the right ankle currently evaluated as 40 percent disabling, (2) entitlement to a continued temporary total rating for convalescence after [January 31,] 2009, and (3) an increased rating for a right ankle disability prior to March 17, 2010.  In his substantive appeal received in January 2011, the Veteran specifically limited his appeal to the issues of entitlement to a temporary total rating for convalescence after [January 31,] 2009 and to an increased rating (in excess of 30 percent) for residuals of a trimalleolar fracture of the right ankle prior to March 17, 2010.  He did not appeal the 40 percent rating assigned effective from March 17, 2010.

Finally, in a December 2011 rating decision, the RO, in pertinent part, granted a temporary rating of 100 percent effective June 8, 2011 based on surgical treatment requiring convalescence for the right ankle disability and assigned a 40 percent rating for the right ankle disability effective from September 1, 2011.  A separate December 2011 letter notified the Veteran of the decision and enclosed a copy of the rating decision, but the Veteran did not express disagreement with the decision.  

The Board notes that in a July 2012 supplemental statement of the case, the RO listed the following as the first issue on appeal: "Evaluation of residuals, trimalleolar fracture of the right ankle, which was 30 percent disabling from February 1, 2009, 40 percent disabling from March 17, 2010, 100 percent disabling from June 8, 2011, and 40 percent disabling from September 1, 2011."  The Board reiterates that the Veteran specifically limited his January 2011 appeal of the July 2010 rating decision and did not include the issue of a rating in excess of 40 percent from March 17, 2010, nor has he expressed disagreement with the 40 percent rating assigned effective September 1, 2011.  However, inasmuch as VA has taken actions to indicate to the Veteran that the issues of a rating in excess of 40 percent for a right ankle disability from March 17, 2010 through June 7, 2011 and from September 1, 2011 and it took no steps to close the appeal, the requirement that there be a substantive appeal is deemed waived.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing period for a substantive appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly).  Accordingly, these issues remain on appeal.

In January 2013 the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The issues of entitlement to a rating in excess of 40 percent for residuals of a trimalleolar right ankle fracture, to include on an extraschedular basis, and entitlement to a TDIU due to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a March 2002 rating decision, the RO denied service connection for PTSD; although notified of the denial in a March 2002 letter, the Veteran did not express disagreement with or perfect a timely appeal of the decision.

2.  Evidence associated with the claims file since the unappealed March 2002 rating letter, raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD.

3.  Although the Veteran participated in combat with the enemy, the most probative evidence of record indicates the Veteran does not meet the diagnostic criteria for a diagnosis of PTSD and that his other psychiatric disorders were not incurred in, caused or aggravated by, or otherwise medically related to active service.

4.  The competent and probative evidence of record fails to establish that a left ankle disability was initially manifested during service or is otherwise related to active service, or that a left ankle disability was caused or aggravated by a service-connected right ankle disability.

5.  From February 1, 2009 and beyond, the July 23, 2008 right ankle surgery did not result in severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement; or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery, of one major joint or more. 

6.  For the time period from February 1, 2009 through March 16, 2010, a right ankle disability has been manifested by no motion of the ankle with the exception of dorsiflexion to 2 to 3 degrees and plantar flexion to 5 degrees on VA examination in July 2009 with objective evidence of pain.


CONCLUSIONS OF LAW

1.  The March 2002 rating decision in which the RO denied service connection for PTSD is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012).

2.  As pertinent evidence received since the March 2002 denial is new and material, the criteria for reopening the claim for service connection for PTSD are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  The criteria for establishing entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).

4.  The criteria for establishing service connection for a left ankle disability, to include as secondary to service-connected residuals of a trimalleolar right ankle fracture, have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 

5.  The criteria for an extension of a temporary total rating for convalescence following a July 23, 2008, right ankle surgery after January 31, 2009 have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.30 (2012). 

6.  With resolution of the benefit of the doubt in the Veteran's favor, for the time period from February 1, 2009 through March 17, 2010, the criteria for a 40 percent rating for a right ankle disability have been more nearly approximated.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.  38 C.F.R. 
§ 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway  v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). 

An October 2005 pre-rating letter from the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim to reopen for service connection, including the reopening criteria and the criteria for establishing the underlying claim for service connection.  The letter described what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  A May 2006 letter also advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations.

A September 2006 letter from the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for a left ankle disability on a secondary basis, and a November 2008 letter notified the Veteran of the information and evidence needed to substantiate the claim for a temporary total rating for convalescence after surgery for the right ankle disability.  The Veteran was not notified of the information and evidence needed to substantiate the claim for a higher rating for his right ankle disability.  However, a January 2009 letter included the diagnostic criteria for rating disabilities of the ankle, and given the favorable decision to increase the assigned rating for the period from February 1, 2009 through March 16, 2010, no further action is required in this regard.  The case was last adjudicated in July 2012.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, post service private and VA treatment records, records from the Social Security Administration, lay statements and hearing testimony, and VA examination reports and medical opinions. 

In summary, VA has considered and complied with the VCAA provisions discussed above.  The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was an active participant in the claims process by submitting evidence and argument.  Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. New and Material Evidence

The Veteran seeks service connection for PTSD.  The RO originally denied the Veteran's claim in a decision dated in March 2002.  He was notified of the denial in a March 2002 letter.  He did not file a notice of disagreement or perfect a timely appeal of the March 2002 RO decision denying service connection for PTSD.  See 38 C.F.R. §§ 20.200, 20.201, 20.202.  The RO's March 2002 denial of the claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim.  Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993).  The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim.  The Board will therefore undertake a de novo review of the new and material evidence issue.

As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material."  Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 271 (1996).

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

In the recent case of Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."

The Veteran's claim of entitlement to service connection for PTSD was initially denied in a March 2002 rating decision.  At the time of the decision, the evidence of record consisted of the Veteran's service treatment records; a February 1993 private audiological evaluation report; VA treatment records; VA examination reports pertaining to claimed right ankle and bilateral hearing loss disabilities; a December 2001 letter from M. Hutchinson, M.D., summarizing the Veteran's treatment for attention deficit hyperactivity disorder (ADHD), recurrent depression, polysubstance abuse in remission, and mixed personality disorder; a February 2002 VA PTSD examination report, and statements from the Veteran.  

The claim was denied in March 2002 because the most persuasive evidence of record indicated that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD, and while he did meet the criteria for depression, depression was not shown to be related to his military service.  The evidence submitted subsequent to the March 2002 decision is new, in that it was not previously of record, and is also material.  Presumed credible, the additional evidence received since the March 2002 decision includes a June 2005 private psychological evaluation by R. McElhose, Ph.D., who diagnosed PTSD among other psychiatric disorders.  Additionally, in April 2007 correspondence, the Veteran, who has identified himself as a registered nurse, outlined his PTSD symptoms associated with his combat experiences and listed how those symptoms fulfill the PTSD diagnostic criteria. 

Therefore, the evidence submitted since the final March 2002 decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  See Kent, 20 Vet. App. at 10 (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied").  Accordingly, the Board finds that the claim of service connection for PTSD must be reopened.

III.  Service Connection

A. Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a 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 the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

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).

In the absence of proof of a present disability there can be no valid claim.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 

To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)).

Service connection may also be established if the evidence of record shows that a chronic disorder has been caused or aggravated by an already service-connected disability.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995).  The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal.

The Board acknowledges that in the case of any veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of DSM-IV]; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f).

The DSM-IV diagnostic criteria for PTSD require (1) exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and (2) a response that involved intense fear, helplessness, or horror.  Additional diagnostic criteria must be met before a diagnosis of PTSD is warranted.  See DSM-IV, 309.81 Posttraumatic Stress Disorder.

The Board also notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended as follows.  If a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010).

If the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor.  See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994).  See also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).

B. Facts and Analysis - PTSD

Service treatment records reflect that a neuropsychiatric consultation was requested in June 1964 after the Veteran returned to ship from a party where he indulged in several bottles of beer and attempted to jump from the signal bridge.  Upon questioning, he claimed it was a suicidal gesture and that he had such thoughts even when sober.  During the evaluation, the Veteran reported that he returned to the ship intoxicated, climbed on the bridge, and threatened to jump off.  He reported occasional suicidal thoughts when sober, but did not have any intention of ever doing anything.  He stated that his father was killed in Korea, the family moved to another state, and his mother remarried.  He reported doing well in school and making excellent grades in high school.  He indicated that he planned to attend a university, but joined the Navy impulsively to become independent and live on his own.  He had attended E.T. (electronics technician) school for nine weeks, but was dropped due to his attitude in class.  He was unhappy in service and preferred to be home in school.  The impression was that the Veteran was mildly immature and unhappy, but not depressed.  The examiner explained that the Veteran was having some mild difficulty adjusting to the Navy, but should be given support and encouragement in his efforts to mature.  He recommended that the Veteran not be allowed to drink for six months and preferably until he was of [legal drinking] age.

In June 1969, the Veteran was referred by his Division Officer for a psychiatric consultation because he had gross nervous tremor with his nervous condition adversely affecting his work.  According to the Division Office, the Veteran's compulsive nature had caused him to be a chronic liar, and his apathy toward sexual behavior had adversely affected his new marriage.  During the evaluation, the Veteran disclosed that he was bothered by feelings of low self-esteem, increased tremulousness since returning from Vietnam in December, and had many mixed feelings about his wife of four months.  He indicated that he had never been able to express his feelings very directly, especially aggressive feelings, which he tried to deny out of existence or isolate.  He reported that he was fearful he would become like his father, a violent alcoholic who committed suicide when the veteran was two years old.  He also stated that before going to Vietnam, he was afraid he would be a coward, but he discovered that he functioned commendably when in combat.  Despite such real achievements, he reportedly felt the need to tell tales in bull sessions so that other people would like him.  The examiner remarked that past history gave no evidence of psychopathy.  

On mental status examination, the Veteran constantly derogated himself, stating that his wife's possible infidelity must be his fault; he was observed as mildly anxious with slight tremor; and his mood was mildly depressed.  The impression was mild depressive reaction with anxiety.  Valium was prescribed, and the examiner recommended that the Veteran needed encouragement to ventilate his feelings, especially of anger.  The examiner also reassured the Veteran about his masculinity.

Medical examination reports dated in July 1963, August 1963, October 1966, and July 1972 (at separation) documented normal psychiatric functioning on clinical evaluation.  

Service personnel records show that the Veteran was awarded the Purple Heart, the Navy Commendation Medal with Combat V, Vietnam Campaign Medal with Device, and Vietnam Service Medal with Bronze Star.  Therefore, the evidence establishes that the Veteran engaged in combat with the enemy during service in the Republic of Vietnam.

During March 2001 post-service VA treatment for right ankle pain at an emergent care center, the Veteran reported a past medical history that included depression.  Current medications included Prozac (Fluoxetine) and Effexor (Venlafaxine).  The plan included an appointment for psychiatry.

The Veteran's initial claim for service connection for PTSD was received in October 2001.  In his formal application, he asserted that he had PTSD caused by combat experiences in Vietnam in 1968.  He indicated that of his 12-man boat crew, one was killed and four were seriously wounded.  He reported that he was in several major campaigns and many minor campaigns.  He stated that he had "flash back dreams" and difficulty maintaining a job since.

The Veteran presented for an initial VA psychological evaluation in September 2001.  He reported that he knew his biological father abused his mother because he found a divorce degree granted based on cruelty to his mother and he believed he was an alcoholic.  After the divorce, his father committed suicide the following year.  His mother remarried three years after the divorce.  He stated that he did not have many friends growing up and was teased by his peers at school and was easy to pick on because he did not fight back.  He disclosed that he told many exaggerations and lies to classmates in an attempt to fit in.  Academically, he reportedly had difficulty with his classes and had trouble sitting still and concentrating.  Sometime later, he was reportedly diagnosed with attention deficit hyperactivity disorder (ADHD).  He described one traumatic childhood experience involving sexual abuse at age 12 by an 18-year-old boy, adding that he never told anyone about the event or received any counseling.  He indicated that he stole a car when he was 15-years-old, began experimenting with alcohol at age 16, and after that drank on weekends to excess because it helped him to "feel in control."  

The Veteran reported "flunking out" of electronics technician school during military service and drinking as much as he could during this time, making it difficult to wake up and complete required tasks.  He described his duties and experiences during service in Vietnam.  He stated there was mortar every night and he went outside with others to watch the "fireworks."  During his second tour in Vietnam in 1968, he indicated that his ship was exposed to a series of small battles.  He reported that during a battle, the back of his right arm was hit by AK-47 rounds, but he did not realize he had been hit until someone saw the blood and told him he had been hit.  He received the Purple Heart for this wound.  

After service, he enrolled at a university for one year before dropping out.  Then he worked as an orderly at a hospital for one year.  He then went to nursing school for two years, graduating in 1974.  After graduating he worked in about seven hospitals and long-term care facilities for the next several years, many for only six months at a time.  He had difficulties at most of these jobs, usually related to his use of alcohol.  He stated that he often was unable to complete his tasks and quit several of these jobs just short of being fired.  He worked in the psychiatry department of a hospital from 1982 until 1988, and then worked at another hospital until November 1994 when he was fired for stealing prescription pain killers from patient drawers.  Then, he entered AA treatment for his addiction to alcohol and other drugs.

His subjective complaints included nightmares about Vietnam that had increased since the 9/11 terrorist attacks, sleep disturbance, feeling "scattered" and having difficulty concentrating, irritability, feeling bothered by loud noises and sometimes being startled by something, a lack of self-confidence, and feeling frequently afraid and wondering what people really meant when they said things to him.  Objective mental status findings included difficulty staying focused and tangential and disorganized speech, needing several prompts to remain focused on the initial question.  The examiner indicated that the Veteran's behavior suggested possible difficulty with impulse control.  Psychological testing was administered, including the Mississippi Scale for Combat-Related PTSD (MCS); according to the psychologist, the MCS score indicated that he met the criteria for PTSD.  The diagnosis was PSTD and rule out psychotic disorder not otherwise specified (NOS).  

In an addendum to the evaluation, the psychology intern and team leader/clinical psychologist who cosigned the initial report indicated that the Veteran's diagnostic picture was complicated by concerns about his thought process.  Therefore, the PCT (PTSD Clinical Team) was not able to make a definitive conclusion as to the presence of PTSD.  They noted that although he did not report a significant amount of distress during the clinical interview or on two of the psychological tests administered, his score on the MSC did fall slightly above the cutoff for a diagnosis of PTSD.  They added that despite his score on the MSC, the Veteran's responses during the present interview suggested that it was unlikely that he experienced a traumatic event that met criterion A for PTSD.  To clarify the diagnostic issues, he was referred for further psychological testing.

In a December 2001 statement, a private psychiatrist, M. Hutchinson, M.D., reported that the Veteran had been in treatment with her and her partner for approximately two years [since 1999].  The diagnosis was ADHD; recurrent depression; polysubstance abuse, in remission; and mixed personality disorder.  Current medications included Effexor and Adderall. 

The Veteran was afforded a VA PTSD examination by a clinical psychologist in February 2002.  The examiner indicated that he reviewed the claims file and noted the Veteran's participation in combat as reflected by medals and awards received.  Regarding symptoms and subjective distress, the Veteran reported that since becoming clean and sober in 1994, he had experienced some difficulties staying asleep at night.  The examiner pointed out the Veteran had been diagnosed with ADHD as well as a probable personality disorder and depression.  The Veteran reported that generally he did not remember the content of his nightmares or dreams.  Perhaps once a week or so, he could recall that he had a dream about Vietnam and remember the dream for a short period of time.  He described himself as irritable, angry, short-fused, and having road rage.  The examiner remarked that there were indications that the Veteran had difficulty with impulse control and emphasized that one needs to take into account that the Veteran has a diagnosis of ADHD and mixed personality disorder.  The Veteran also described himself as emotionally distant, perhaps antisocial, and standoffish.  He reported having trouble getting along with people, except on a short-term basis and he pointed out that this was a factor related to ADHD as well as to anything else.  He endorsed being somewhat easily startled by loud noises, becoming somewhat defensive and vigilant, but not disruptive.  

The Veteran reported that he had a lengthy history of drug and alcohol abuse that involved multiple thefts of prescription medications, including on his job as a registered nurse, from which he was fired in 1994.  He reported that he used to think of himself as a "sociopath" because of this, but now ascribed this to drugs and alcohol.  The examiner opined that many, if not all of the Veteran's symptoms, were related to diagnoses other than PTSD and were very consistent with his other diagnoses.  He noted that the Veteran did not offer any other specific symptoms associated with PTSD.  The Veteran's description of his childhood, family, and social history was consistent with what he reported in October 2001.  He stated that between 1994 and 2001, he worked as a systems analyst for a computer soft ware company and on weekends as a registered nurse at a hospital until he was terminated from both jobs between July and October 2001 because of failure to perform due to being distant, disorganized, lacking in concentration, and inattentive to his requirements and duties.  He indicated that he had been working shift work at WPIC [Western Psychiatric Institute and Clinic] since December 2001.

The Veteran stated that he went to a private psychiatric group in 1999 because he was having difficulty with concentration, organization, irritability, and some marital difficulties.  He reported that the diagnoses had been ADHD, depression, and polysubstance dependence.  He claimed that the psychologist indicated that he may well also have symptoms of PTSD, but they were overlapping with his other conditions.  The examiner noted that the Veteran initially came to VA in 2001 for assistance in treatment, but as further discussion was initiated, it became apparent to the examiner that the Veteran came to VA in an effort to get his condition service connected, such that he could receive treatment at no cost.  Evidently, according to the Veteran, his wife complained when he visited the psychologist because it costs money, and she is "more concerned about paying off their credit cards," according to his report.  More remotely, the Veteran indicated that in February 1969, he went to the Naval Hospital after returning from Vietnam because he was having very "weird dreams," such as having sex with dead Vietnamese people.  He was given a bottle of Valium at the time and dismissed.  

The examiner described his review of the [October 2001] initial evaluation, noting that the examiner did not believe that the Veteran experienced a trauma that he claimed and that his score on the Mississippi Combat Scale was above the cutoff score for Vietnam Veterans.  The February 2002 examiner indicated that he would hardly disagree with that assessment because while records did indicate that the Veteran experienced traumatic events, there was little evidence that the experiences resulted in PTSD.

Objective findings on mental status examination included conversation that at times tended to drift away and become somewhat tangential and overly detailed, which the examiner believed may be related to ADHD; somewhat somber and sober mood and affect when discussing past experiences with drugs and alcohol and the manner in which his life had been disrupted because of it and his psychiatric disorders; no acute distress when talking about Vietnam; and major impediments in insight and judgment, especially with respect to his history of polysubstance dependence, antisocial and criminal behavior, and his continued misperception of the manner in which some of the aspects and issues of his life seem to relate.

Following a review of the claims file, clinical interview, and mental status examination, the diagnosis was chronic dysthymic disorder secondary to the impact of polysubstance dependence; chronic, moderately severe ADHD; and chronic, severe polysubstance dependence, currently in long-term, full remission by the Veteran's report.  The examiner summarized that the Veteran did not meet diagnostic criteria for the diagnosis of PTSD.  He did meet the criteria for depression, but the psychologist believed that it was unrelated to his military service.

In a July 2002 private treatment record received from M. McGonigal, M.D., the Veteran offered no complaints except for occasional elbow pain.  He indicated that he was a psychiatric nurse and had been fired from many jobs in the last year.  The assessment included ADHD and recovering alcoholic.

During June 2003 treatment with Dr. McGonigal, a list of the Veteran's current problems included severe ADHD diagnosed by a psychiatrist, Dr. Hutchinson, in 1998; and past substance abuse and alcoholism, now off all addictive medications including cyclostimulants.  Subsequent treatment records from Dr. McGonigal dated through September 2005 reflected ongoing treatment for adult ADHD, including prescriptions for Depakote, Prozac, and Strattera; reports by the Veteran of losing additional jobs; and the Veteran's admission in February 2004 that he is hypomanic most of the time and the doctor's assessment of possible bipolar depression.  In September 2005, the Veteran complained of problems with ADHD, stating that he was fired from work because of ADHD and that he had lost ten jobs since 2001.  He was counseled to seek Supplemental Security Income (SSI) from the Social Security Administration (SSA).

During a June 2005 initial assessment with R. McElhose, Ph.D., the Veteran reported that he had previous treatment at VA and with Dr. Hutchinson for PTSD associated with his status as a Vietnam Veteran who served on a riverboat.  He also stated that he had been diagnosed with ADHD, depression, and bipolar disorder.  He reported that he had problems with impulse control as a child and heavy alcohol use during and after service.  The diagnosis was bipolar manic moderate, PTSD, and ADD (attention deficit disorder).  A September 2005 progress note indicated that the Veteran's dialysis job ended in August and that the employer tried to work with him, but his ADD prevented him from staying focused.  In a September 2005 letter in support of the Veteran's application for SSA disability benefits, Dr. McElhose indicated that the Veteran's diagnoses were PTSD; bipolar, manic, moderate; and adult ADD with childhood onset. 

The Veteran's application to reopen the claim for service connection for PTSD was received in October 2005.  He reported that he had been treated for PTSD by Drs. M. Hutchinson, F. Hutchinson, M. McGonigal, and R. McElhose since October 1999.

A lay statement received in October 2005 from E. G. described some common military experiences he had with the Veteran and indicated that the Veteran and his crew had rescued him from a disabled boat along a river bank during a battle in Vietnam.

The Veteran detailed his military experiences while serving in Vietnam from January through December 1968 in a letter received by VA in January 2006.  Upon arriving in Vietnam and seeing strings of red and green tracers bouncing up around the entire perimeter of the air base, he "felt a little queasy for the first time, a feeling that [he carried with him] for a year," which he "recognized [] as fear only after his first firefight."  He described standing on the open deck of a boat guarding prisoners as they moved slowly down the river, "a little too slowly" for him.  He reported that he was in five firefights in four days, was "scared 'spit less,'" and that feeling never left until he left from Saigon in December.  He described numerous battles and attacks during which other people were killed in action or wounded.  He stated that while helping with cover fire, he was shooting with a machine gun and later realized that he had killed someone face to face; he reported seeing that face many times since then.  He reported that after returning from a firefight, someone discovered that he was hit with two large pieces of brass shrapnel in his right arm.  After sewing it up and being in a sling for three days, he was sent back to duty.  Finally, he stated that it was "interesting" that he was the only one left of his original crew when he rotated back.  Others had "golden wounds" or Purple Hearts.

He indicated that when he returned from Vietnam, he told a military psychiatrist about dreams that kept him awake at night, such as raping a VC woman and sometimes the VC woman was already dead.  He indicated that since military service, he had been unable to keep a job, failed out of university, and passed nursing school despite having a reputation as a "hard partier."  He believed that he had rapidly dwindling job opportunities, disclosing that he had "worked in every hospital in this city and one computer company."  He acknowledged that he had some problems before going to Vietnam, but after returning his problems were huge.

In correspondence received in March 2006, the Veteran's wife described effects that the Veteran's alcohol and prescription drug abuse, extremely poor judgment, inability to finish a job, and poor impulse control had on the family. 

The Veteran presented to reestablish VA medical care in January 2006.  He reported a past medical history that included PTSD, ADHD, and depression.  On examination, he did not appear to be anxious or depressed.  During a January 2006 psychosocial assessment, he stated that since returning from Vietnam, he had felt detached, guarded, and less emotional, and that he had occasional nightmares.  He indicated that he had "been 'ADHD'" since his was a kid, but was not formally diagnosed until he was an adult.  The assessment was anxiety NOS.  

Later in January 2006, he presented for a VA psychiatric assessment.  He stated that he attempted to obtain PTSD service connection, but was unable to do so because his psychiatrist, noted to be Dr. Hutchinson, "didn't send the papers in."  He indicated that M. Hutchinson and F. Hutchinson had moved from the area.  The psychiatrist noted the Veteran's complicated history, in which he reported diagnoses of ADHD, PTSD, anxiety, depression, difficulties with holding a job, and verbal abuse by his wife.  The Veteran reported being diagnosed with ADHD in 1999 by a private psychiatrist after extensive evaluation, including talking with his mother about his childhood behavior.  

The Veteran stated that his symptoms of difficulty finishing tasks, forgetting tasks, and with concentration worsened after returning from Vietnam and were "complicated by [his] PTSD."  He identified frequent combat situations in Vietnam and stated that a frequent source of relived trauma was his return to the U.S. airport and being verbally abused and spat upon.  He reported that his private primary care physician told him that he had PTSD.  He endorsed currently having dreams of being back in combat and some avoidant behavior and feeling detached.  He denied having panic attacks, intrusive thoughts, or compulsive behaviors.  He reported one instance of sexual abuse when he was ten years old by an 18-year-old.  The diagnosis was alcohol and opioid dependence in sustained remission, ADHD, rule out PTSD, rule out dysthymic disorder, and rule out bipolar disorder.

The Veteran was afforded another VA PTSD examination in May 2006 by a different clinical psychologist than the one who performed the February 2002 examination.  The Veteran again described combat experiences during service in Vietnam in 1968.  First, he reported that in January 1968 he observed another boat in his unit "taking the boat captain out" of the boat and that he observed the wound and blood.  However, it was noted that he did not observe the fatal injury at the time it occurred, nor was he involved in the retrieval of the body.  He described the observation as a "complete shock" to him.  Second, he stated that he was approximately 40 feet away from a gun mount when it was hit and observed "blood all over the place" when he approached the gun mount; he indicated that the three wounded individuals all survived their injuries.  Third, he reported that an enemy combatant 30 to 40 feet away was killed by rounds from his weapon.  Fourth, he indicated that he was wounded by two AK-47 rounds, but did not realize he had been wounded.  When asked about specific symptoms or problems that he believed were related to experiences in Vietnam, he endorsed having dreams all the time about being in one of his old situations, being on the boat or in the jungle, or someone chasing him; being "distant" from his wife according to the wife; and being "less capable" of functioning adequately when under increased stress.  

The psychologist administered psychological tests, including the Impact of Event Scale, in which the Veteran endorsed every possible symptom, which was noted to be in marked contrast to symptoms or problems that he spontaneously offered in the clinical interview.  Similarly, the psychologist indicated that the Veteran's score on the Mississippi Scale for Combat-Related PTSD was above the cutoff score for PTSD, seeming to reflect a degree of over reporting consistent with the other instruments.  His score on the Beck Depression Inventory indicated severe depression.  The examining psychologist concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, either in terms of a valid Criterion A stressor or presenting with the full constellation of symptoms necessary to warrant this diagnosis.

During a mental status examination, the psychologist observed that the Veteran did not exhibit any overt manifestations of depression or anxiety.  He denied any symptoms consistent with obsessive or ritualistic behavior that would interfere with routine activities.  He endorsed some mild symptoms consistent with depressed mood, including disturbed sleep.  The psychologist indicated that the Veteran's reported symptoms offered during the clinical evaluation and their severity were more likely more accurate than how he presented himself on the Beck Depression Inventory.  He reported that he experienced anxiety "all the time."  

Following a review of the claims file, psychological testing, clinical interview, and mental status examination, the diagnosis was dysthymic disorder (unrelated to military service), polysubstance dependence in full and sustained remission (unrelated to military service), and adult ADHD per the Veteran's report (unrelated to military service).  The examiner summarized that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD.  However, he did meet the criteria for a mood disorder, dysthymia, which was unrelated to military service.  The examiner noted that per the Veteran's report, he first sought treatment in 1994 for symptoms of depression, and he reported longstanding problems with maintaining employment.  He also reported alcohol abuse and polysubstance abuse contributing to his difficulties in maintaining adequate occupational functioning.  

In congressional correspondence dated in July 2006, the Veteran stated that he was unable to hold a job due to PTSD.  A lay statement received from J. E. in August 2006 described combat experiences that he had with the Veteran in Vietnam in 1968.

With his substantive appeal received in April 2007, the Veteran stated that he was not in the habit of making up stories and again asserted that his [DSM-IV criterion] A stressor was his year of combat in Vietnam in 1968.  He indicated that he had always had bad dreams, which he often could not remember, but that left him shaken and sweating.  He stated that after "all the research [he] had to do on [his] year in Vietnam, the dreams became much more vivid and frightening because [he] had to force [himself] to remember things he had clearly forgotten."  He described emotional detachment, loss of interest in many things, sleep and concentration problems, and alertness or exaggerated startle response.  Then, he stated that he had described almost every symptom of PTSD according to DSM-IV-[T]R.

Records associated with the Veteran's claim for SSA disability benefits were received in September 2007.  In an October 2005 record of contact with an SSA official, the Veteran reported that his depression and ADHD had a childhood onset. In connection with his claim, he underwent a clinical psychological disability evaluation in November 2005.  He disclosed that he was applying for SSA disability benefits because he could not keep a job, stating that he had been diagnosed with ADHD, manic traits, and PTSD by Dr. McElhose.  The Veteran stated that his diagnosis of PTSD was related to his Vietnam service.  He indicated that he had a "genetic" tremor that he had had all of his life.  He denied childhood neglect, but stated that he used to get his "ass whipped frequently" and that he was "an ADD child," a bad child, and overly curious.  He reported that he was a riverboat gunner in Vietnam and his "conduct was alcoholic" at the time he left service.  After completing a clinical interview and mental status examination, the examiner stated that the Veteran's diagnosis appeared to be consistent with ADHD, combined type; PTSD; and rule out bipolar disorder.  After a mental residual functional capacity assessment and psychiatric review technique, the SSA Doctor of Psychology summarized that the Veteran alleged disability due to ADHD, depression, PTSD, and other problems; but the medical evidence established medically determinable impairments of mood disorder NOS, anxiety disorder NOS, ADHD, and alcohol and opioid dependence in full sustained remission.  The reviewer also noted that the Veteran had completed 14 years of formal education.

The Veteran was afforded a VA PTSD examination by a third clinical psychologist in May 2008.  The examiner's report reflects a thorough review of the claims file.  The Veteran provided an account of his premilitary history that was similar to previous reports.  He disclosed an instance of sexual abuse at age ten by an older neighborhood boy; having difficulty concentrating, paying attention, and sitting still in class; having few friends in childhood, not fitting in well socially, and being beaten frequently by peers; and rarely experimenting with alcohol before military service.  

The Veteran denied traumatic military experiences prior to his 1968 service in Vietnam, but described three stressors he had previously reported as well as three new combat-related stressors.  First, he reported being wounded.  Second, he again described a boat captain being killed during an ambush.  The examiner noted that while he denied handling the body on the previous examination, he now stated that he helped pull the body of the boat captain out of the other boat.  Third, he reported the 40-mm gun being hit by a rocket while he was working on the 20-mm gun.  The examiner noted that the Veteran was now reporting that he helped to move the wounded, although he had not reported such handling of wounded during the previous examination.  Additional reported stressors included standing on a boat guarding 18 prisoners; he stated that he was afraid for his life because he believed that he made a good target for someone to shoot him from the shore, but he did not receive any fire at that time.  He also described jumping into the water to tie a rope to another boat that was hit by a rocket, helping to pull the wounded off the boat, and seeing his own boat get hit by 75 recoilless rifles.  Finally, he reported relaxing on a boat going down a canal and seeing a man, woman, and child sitting around a table that appeared to be on top of a mud bunker when he the crew were suddenly ambushed from fire along that bank.  He stated that he fired towards the bunker; however, he did not describe what happened after he fired on that particular bunker.

He again reported problems that he had during nursing school and during his employment at more than 20 nursing jobs as a result of absenteeism or decreased productivity due to alcohol use or distraction from reported ADHD as well as at least one occasion of stealing drugs while working at a hospital.  He indicated that he was treated around 1999 by Dr. Hutchinson for ADHD with Adderall and had an initial evaluation with the PTSD clinical team in September 2001 and was not diagnosed with PTSD.

Regarding subjective distress, the Veteran stated that he falls asleep easily, but awakens for 30 to 90 minutes at a time during the night.  He reported "flashbacks," which included finding himself thinking about the past and questioning his past decisions anywhere from one to two times per week. Specifically, he stated that he will cut the grass, then stop and look off into space and think about the past; usually during this time he questions his past behaviors and decisions.  Occasionally, he thinks about being in the jungle of Vietnam all alone.  He described suppressing his anger, being impulsive with his words during arguments, being curious and watchful regarding people around his neighborhood, and difficulty holding a job and getting things done at work due to distraction.

The examining psychologist believed that the Veteran, who was wounded in combat and received a Purple Heart, met criterion A for a diagnosis of PTSD.  Despite this, the examiner believed that the Veteran was not reporting any symptoms consistent with a diagnosis of PTSD.  For example, he did not report any nightmares or intrusive thoughts; his report of experiencing "flashbacks" was not any kind of memory or intrusive thought of a particular traumatic event, but rather simply being in Vietnam in a situation that did not occur; he did not report avoidance symptoms, but instead just the opposite, indicating that he always watches Vietnam movies and news clips about war and stating that "it's like going home;" and he did not describe numbing symptoms.  While he reported that he did not sleep well, the examiner explained that it was not a pattern consistent with arousal in that he was able to fall asleep easily and attain six to seven hours of sleep per night.  He also reported some irritability and angry outbursts and some poor concentration, which appeared to be related to personality characteristics and ADHD.  The examiner concluded that overall, the Veteran was reporting a traumatic stressor, but not enough symptoms in order to meet DSM-IV diagnostic criteria for PTSD.  

The examiner considered PTSD diagnoses made by Dr. McElhose and the doctor conducting the SSA disability examination, but indicated that the reports did not include enough information to see why they made that diagnosis.  He added that neither Dr. McElhose nor the SSA examiner identified a specific traumatic stressor nor outlined the specific symptoms that they believed met criteria for PTSD.  Therefore, their diagnoses did not appear to be based on DSM-IV criteria.  The VA examiner also administered a battery of psychological tests and concluded that overall, the Veteran's psychological test scores were inconsistent with what he reported during the clinical interview and indicated problems and symptoms that the Veteran had specifically denied during clinical interview.

On mental status examination, the psychologist observed a slight tremor in both hands and the Veteran reported that this was a tremor that he had always had that was not related to anxiety or nervousness.  The diagnosis was dysthymic disorder (unrelated to military service), polysubstance dependence in full sustained remission (unrelated to military service), and ADHD (unrelated to military service).  The examiner summarized that the Veteran did not meet the DSM-IV criteria for the diagnosis of PTSD.  He explained that individuals who have given that diagnosis had not been able to support the diagnosis with clear facts including criterion A stressor or specific symptoms that would warrant the diagnosis.  Further, treatment and evaluation reports that had been thorough with regard to evaluation of stressor and symptoms had never resulted in a diagnosis of PTSD, and the Veteran's current treatment, which he said was helpful, was not focused on PTSD.

During November 2008 VA psychiatry treatment, the Veteran endorsed some "irritability" attributed to his current physical condition.  He stated that he wanted to take legal action against VA for refusing to diagnose him with PTSD and provide benefits.  The assessment was anxiety disorder NOS and history of polysubstance abuse.

Subsequent VA treatment records reflected treatment for anxiety disorder NOS and ADHD per the Veteran's reported history.

During February 2011 VA psychiatry treatment, the Veteran stated that overall his depression and anxiety seemed to be manageable at this point on his medication.  He voiced some concerns about memory and word finding.  He was referred to the neuropsychological service for testing.  He was evaluated during a March 2011 VA neuropsychology consultation.  The diagnosis was adjustment disorder with depressed mood and anxiety, history of anxiety disorder NOS by history, and history of alcohol and opiate pain medication abuse in sustained full remission per the Veteran's report.  None of the disorders was attributed to the Veteran's military service by the examiner.

In January 2013, the Veteran testified that his life was threatened several times during his 1968 service in Vietnam and that he now has intrusive thoughts all the time that someone would harm him.  He stated that he did not pay much attention to his PTSD symptoms until he "heard about PTSD" and a doctor told him that he had it during a visit.  He explained that he worked with the DSM-IV for years as a psychiatric nurse, and he kept up to date with DSM revisions because he used DSM criteria to determine what was wrong with people.  He described his claimed PTSD symptoms as feeling like he does not belong, difficulty falling asleep, and inability to concentrate resulting in inability to finish any task, which was the reason that he quit working.  He also reported having vivid dreams, a few flashbacks, and when a helicopter goes over his house while cutting the grass, it "would take [him] back a little bit and [he would] sit there thinking about it."  His wife testified that she had observed the Veteran with his mind somewhere else and "in his own head" with this behavior occurring almost every time the Veteran cut the grass.  She added that the Veteran would not "snap out of it" until she yelled at him. 

Having carefully considered the medical and lay evidence of record, the preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include PTSD.  Initially, the Board emphasizes that the evidence establishes that the Veteran engaged in combat with the enemy, and this fact is not disputed.  In this regard, competent and credible lay evidence of record establishes that the Veteran was at least confronted with events that involved actual or threatened death or serious injury, and/or a threat to the physical integrity of himself and others.  See DSM-IV, 309.81 Posttraumatic Stress Disorder, criterion A(1).  The issue is whether the Veteran's response to any of these events involved "intense fear, helplessness, or horror," per DSM-IV criterion A(2) for PTSD and whether he exhibits the symptoms necessary to warrant a diagnosis of PTSD.

Regarding PTSD specifically, the Board finds that the record does not provide a basis for establishing service connection for PTSD because no psychologist or psychiatrist has diagnosed the Veteran with PTSD in conformity with the DSM-IV diagnostic criteria.  See 38 C.F.R. §§ 3.304(f), 4.125 (2012).  Notably, both the June 2005 evaluation by Dr. McElhose and November 2005 psychological evaluation conducted for SSA purposes diagnosed PTSD based the Veteran's report that he had PTSD related to military service in Vietnam.  However, neither report reflects that any details were elicited regarding specific traumatic events or the Veteran's response to the events.  Similarly, neither report detailed how any reported symptoms supported a diagnosis of PTSD due to specific combat experiences.  

Moreover, the Veteran's statement to Dr. McElhose in June 2005 that he had previous treatment at VA and with Dr. Hutchinson for PTSD appears to be inaccurate and is not supported by the record.  He was evaluated at VA for PTSD, but not diagnosed with that disorder, and the letter from Dr. Hutchinson does not include PTSD among the diagnosed disorders.  Furthermore, although he reported on VA examination in February 2002 that his 1999 psychologist [Dr. M. Hutchinson's partner, Dr. F. Hutchison] indicated that he may well also have symptoms of PTSD, potentially having symptoms of a disorder does not equate to a diagnosis of a disorder.  Therefore, as these diagnoses of PTSD by Dr. McElhose and the SSA examiner were not rendered in conformity with the DSM-IV diagnostic criteria as required by Federal regulations and appeared to rely solely on the Veteran's inaccurate report that he had already been diagnosed with and treated for PTSD by VA and Dr. Hutchinson, they cannot support a diagnosis of PTSD for VA compensation purposes.

In addition to the evaluations by Dr. McElhose and the SSA examiner, the Board has considered the numerous, additional psychological or psychiatric evaluations and medical opinions regarding whether the Veteran has a current PTSD disability.  When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

However, none of these VA psychiatrists or psychologists definitively diagnosed PTSD.  Each psychologist or psychiatrist explained why the Veteran did not meet the diagnostic criteria for PTSD.  For example, the September 2001 psychologist concluded that his score on the MSC psychological test fell slightly above the cutoff of a diagnosis of PTSD, and his response during the interview suggested that it was unlikely he experienced a traumatic event that met criterion A for PTSD.  The February 2002 VA examiner concluded that the Veteran did experience traumatic events, but there was little evidence that they resulted in PTSD; instead he attributed the Veteran's reported symptoms and objective manifestations of psychiatric impairment to other disorders.  

A January 2006 VA psychiatrist diagnosed rule out PTSD, noting a complicated past psychiatric history because the Veteran reported he was told that he had ADHD, PTSD, depression, and anxiety.  The May 2006 VA examiner determined that the Veteran did not meet DSM-IV criterion A for a PTSD diagnosis nor did he have a full constellation of symptoms consistent with PTSD.  The examiner explained that current psychological testing reflected a degree of over reporting symptoms, endorsing every possible symptom in marked contrast to the symptoms he endorsed during the clinical interview.  Finally, the May 2008 VA examiner believed that the Veteran met criterion A for PTSD, and his report indicated that the Veteran reported for the first time he was "afraid for his life" while standing on a boat guarding prisoners.  However, the examiner provided a detailed explanation regarding his conclusion that the Veteran was not reporting symptoms of PTSD.

The Board notes that the conclusion by multiple psychologists or psychiatrists that the Veteran did not meet DSM-IV criterion A for a diagnosis of PTSD is supported by the evidence of record.  Again, the Board acknowledges that the Veteran experienced a combat injury and was confronted with events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.  Nevertheless, most psychologists or psychiatrists did not find that the Veteran responded to a particular military event with intense fear, helplessness, or horror sufficient to support a diagnosis of PTSD, nor does the record appear to support that the Veteran responded to a traumatic military event with intense fear, helplessness, or horror.  

Throughout the record, the Veteran has described his many combat experiences in Vietnam in dispassionate, frank terms.  In his detailed January 2006 letter regarding military stressors, he described feeling generally afraid or "scared 'spit less'" throughout his 1968 tour in Vietnam.  Then, in April 2007, he again stated that his year of combat in Vietnam was his criterion A stressor.  While these statements communicate a general fear throughout his time in Vietnam in 1968, they do not communicate intense fear, helplessness, or horror in response to a specific event or events.  The Board further notes that it was not until his third VA PTSD examination in May 2008 that the Veteran told a medical professional that while guarding 18 prisoners on a boat he feared for his life.  His May 2008 statement is, therefore, inconsistent with his previous account of the event in his detailed, January 2006 stressor statement that the boat moved "a little too slowly" for him, again reflecting a general fear but not intense fear, helplessness, or horror.    

The Board also considered the Veteran's assertion that Dr. M. Hutchinson diagnosed PTSD or told him that he may have symptoms of PTSD, but finds that this statement is unsupported by the record.  Dr. Hutchinson's December 2001 letter indicated that she had treated the Veteran since 1999, and she listed his psychiatric disabilities, which did not include PTSD.  The June 2003 treatment record from Dr. McGonigal, who also did not diagnose PTSD, further reflects that Dr. Hutchinson had diagnosed the Veteran with psychiatric disabilities other than PTSD. 

The Board recognizes the Veteran's education and his employment experiences at more than 20 jobs in 30 years as a registered nurse, including in psychiatric settings, and his belief that he meets the DSM-IV criteria for a diagnosis of PTSD.  However, the Board places greater probative weight to the clinical evaluations provided by the VA examiners, who each had a Ph.D. in psychology, and by treating VA clinicians who all have greater expertise, training, and objectivity than the Veteran to evaluate and diagnose mental disorders.  Some of these clinicians also administered and interpreted psychological tests as part of their thorough evaluations of the Veteran.

In conclusion, the Board finds that service connection for PTSD is not warranted because there is no persuasive evidence that he has a current PTSD disability that is related to the verified and reported combat experiences during military service.  Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. § 1110.  In order to prevail on the issue of service connection there must be: medical evidence of a current disability, medical evidence, or in some cases lay evidence, of in-service incurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999).  In the present case, neither a competent diagnosis of a current PTSD disability nor medical evidence of a nexus between the in-service stressful combat events and any current complaints has been provided.  Therefore, the Veteran's claim for service connection for PTSD must be denied.

The Board has also considered the broader claim of an acquired psychiatric disorder, including the current diagnosis of adult attention deficit disorder with childhood onset, depression, anxiety disorder, and polysubstance dependence in remission, but finds that service connection is not warranted.  Service treatment and personnel records do not reflect chronic psychological or psychiatric problems.  He was found to be mildly immature and unhappy, but not depressed, in June 1964 after threatening to jump from a bridge after drinking, and in June 1969 the diagnosis was mild depressive reaction with anxiety.  

The Board notes that there are no medical records showing any complaints, findings, or treatment for any psychiatric disorders until 1999 - approximately 25 years after separation from service - when he sought help for difficulty with concentration, organization, irritability, and some marital problems.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between service discharge and medical documentation of a claimed disability is evidence against a claim of service connection).  

In addition, the February 2002 VA examiner attributed the Veteran's dysthymic disorder to the impact of his polysubstance dependence.  Likewise, the May 2006 VA examiner opined that the current dysthymic disorder was not related to the Veteran's military service and supported that conclusion, noting that per the Veteran's report, he first sought treatment in 1994 for symptoms of depression, and he reported longstanding problems with maintaining employment as a result of his alcohol abuse and polysubstance abuse.  Moreover, the Veteran reported that he had symptoms of ADHD since childhood, and he has not claimed that those symptoms were aggravated by service.  Rather, in multiple statements throughout the record, the Veteran has identified having significant occupational and social problems due to his ADHD symptoms, such as poor concentration, and due to his alcohol and prescription drug dependence, admitting that he had been terminated from numerous jobs due to these factors.  Accordingly, the Board finds that the opinions of the February 2002 and May 2006 VA examiners regarding the etiology of the Veteran's depression or dysthymic disorder are consistent with the record, including the Veteran's numerous statements describing the significant occupational difficulty he has experienced due to alcohol dependence, prescription drug dependence, and symptoms of his ADHD. 

In conclusion, the claim for an acquired psychiatric disorder also must be denied because it began many years after service and is not shown to be related to service.

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be denied.

C. Facts and Analysis - Left Ankle

Service treatment records are silent for complaints, findings, or reference to left ankle problems.  In examination reports dated in June 1963, August 1963, October 1966, and July 1972 at separation, clinical evaluation of the lower extremities, including strength and range of motion, was reported as normal.   

During a June 1982 VA examination, range of motion of the left ankle was reported as normal, and x-ray examination of the left ankle was reported as normal.

A March 2001 VA emergent care clinic note reflects the Veteran's complaint of right ankle pain and that an appointment was scheduled with an orthopedic surgeon.  A March 2001 right ankle x-ray report identified a clinical history of right ankle pain and swelling and reported the right ankle examination findings; however, the impression was "old left ankle trauma, as described above."  A June 2001 VA orthopedic note indicates that the Veteran had a left ankle injury in 1965, presumed to be a lateral malleolus fracture and had surgery on it.  He stated that he had been doing fairly well with it, but had now developed significant degenerative disease of the left ankle.  The Board notes that the March 2001 x-ray impression and the June 2001 references to a left ankle injury and left ankle degenerative disease appear to be clerical errors because service treatment records document only a right ankle injury and immediate surgery, because the March 2001 emergency physician referred the Veteran to the orthopedic surgeon after his complaints regarding right ankle pain, and because the March 2001 right ankle x-ray report refers to a history and findings involving the right ankle.

The first post-service evidence of complaints or treatment for a left ankle problem was in April 2002.  The Veteran reported to a private physician, B. Deyarmin, M.D., that he fell the day before when he slipped in the grass and twisted his left ankle.  He stated that he heard a snap when he did it and had pain laterally in the ankle.  The assessment was probable fibula fracture, and he was sent for an x-ray.

In March 2006, the Veteran presented to the VA emergent care center and reported to a nurse that he slipped and fell injuring his left ankle and foot.  He stated that he tripped on steps, sat down onto his left foot and ankle, and crushed the area.  He believed he fractured his ankle.  Approximately 20 minutes later, he reported to an orthopedic resident that he slipped and fell when he was rushing up the stairs holding onto the railing when the railing came loose, causing him to fall with his body weight onto his foot and ankle.  A left ankle x-ray revealed a left oblique distal fibular fracture and left distal metaphyseal fracture of the medial tibia.  An hour later, he told another emergent care center physician that he slipped from a railing and hurt his left ankle.  During an orthopedic consultation the next day, he told an orthopedic surgeon that he was going up some steps as the railing came loose and he sustained a fall.  He was unclear as to the position of his ankle, but from his description, the surgeon believed it was a supination external rotation injury.  The assessment was status post fall, now with a left lateral malleolus fracture and a small posterior malleolus fracture.  The orthopedic surgeon performed an open reduction internal fixation of the left lateral malleolus four days later.  

The Veteran's claim for service connection for a left ankle disability, claimed as secondary to his service-connected right ankle disability was received in August 2006.

During an October 2006 VA examination, the Veteran stated that he was going down steps when his right service-connected ankle gave out on him, which he stated would happen on occasion, and he fell on the left ankle and sustained a fracture.  The examiner indicated that he reviewed the claims file and specifically noted that March 2006 VA treatment records reflected the Veteran's reports that a stair railing came loose, causing him to fall with his body weight onto his left ankle.  Following a physical examination and review of recent x-ray studies, the diagnosis was trimalleolar fracture of the left ankle.  The examiner concluded that the fracture of the left ankle would not be the result of or caused by the service-connected right ankle.  Supporting the conclusion, the examiner noted that the Veteran's report of the sustained fracture was in conflict with the reported story when he was seen in the emergency room in March 2006.  The examiner noted that it would seem that the report of the incident of the railing giving way would not implicate the right ankle in the injury.

In his May 2007 notice of disagreement with the denial of his claim, the Veteran asserted that the reason for the denial was the original description of the incident was totally wrong and implied that he was trying to obtain benefits to which he was not entitled in a dishonest fashion.  He clarified that when he fell in March 2006, he was going down the steps when about halfway down, his right foot, which was leading, had all of his weight on it and gave out due to sharp pain and sudden weakness.  He went down with his left foot still trailing and the toe hooked on a step.  He stated that he sat directly on his left ankle with all his weight, pitched forward grabbing the handrail that was bolted to the wall, and the handrail splintered under his weight and pulled from the wall.  He asserted that the damage to his left ankle was done before the handrail broke.

In January 2013 the Veteran testified that he was going down stairs in March 2006, he experienced sudden right ankle pain when he put his weight on it and the right ankle gave way, he grabbed the stair rail, the rail broke in the middle, and he fell on his left ankle, causing a fracture.  He stated that he had no problems with his left ankle prior to that injury.  His wife testified that she did not observe the accident, but heard the noise.

The Board has considered the medical and lay evidence of record, but finds that service connection for a left ankle disability is not warranted.  

Service connection on a direct basis for a left ankle disability is not warranted because service treatment records do not reflect any left ankle problems; the record does not reflect that any current left ankle disability is related to military service; and the Veteran does not contend that his claimed left ankle disability was incurred in service, including during any combat situations, or that it is otherwise related to military service.  Therefore, service connection for a left ankle disability must be denied on a direct basis.

Considering the claim for a left ankle disability as secondary to the service-connected right ankle disability, the Board acknowledges that the Veteran is competent to describe symptoms related to his right ankle disability, such as pain and giving way, and he is competent to describe events, such as falling.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In addition to considering competence, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In weighing the credibility of lay assertions, the Board 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.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).

The Board finds that the Veteran is not a credible historian.  First, and foremost, his statements made in support of his claim that he injured his left ankle due to sudden pain in his service-connected right ankle and giving way are inconsistent with prior statements he made to medical providers in the course of seeking medical treatment.  For example, in April 2002 he stated that he slipped in the grass and twisted his left ankle; he did not identify any involvement of his right ankle.  In March 2006, he told three different VA clinicians in one day that he slipped and fell onto his left ankle; he described a problem with the stair rail to two of them.  The next day, he told a fourth VA clinician, the orthopedic surgeon, that the stair railing came loose and he fell.  In describing his accident and injury to these four VA clinicians, the Veteran did not report any pain, weakness, instability, or other right ankle symptoms contributing to his fall.  

The Board finds that these statements regarding the cause of the Veteran's left ankle injury are more believable because each was made for the purpose of seeking medical care, and the statements are internally consistent.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care).  However, his subsequent statements, which he made in the course of seeking VA monetary benefits, that he experienced right ankle pain and giving way, causing him to fall on his left ankle, plainly contrast with his prior statements.  

In addition, to the extent that the Veteran has offered a medical opinion in his capacity as a registered nurse that a current left ankle disability was caused by the right ankle disability, the Board finds that such a contention is inconsistent with and unsupported by other evidence of record.  Again, the Veteran described his March 2006 injury to four different people in the course of seeking medical treatment and never identified a problem such as acute pain or a flare-up of his right ankle disability at the time of the injury.  The Court has held on a number of occasions that a medical opinion premised on an unsubstantiated account or inaccurate factual premise is of no probative value.  See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described).

In conclusion, the Board finds the medical evidence, reflecting the Veteran's contemporaneous reports of left ankle injuries in April 2002 and March 2006, to be of greater probative value than the Veteran's contentions made in the course of seeking VA compensation benefits because the Board does not find him to be a credible historian.

Turning to the medical opinion evidence, the Board finds that the October 2006 medical opinion by the VA examiner is persuasive and probative evidence against the claim for service connection for a left ankle disability because it was based on a review of the claims file, examination of the Veteran, and was supported by an articulated medical explanation that is consistent with the evidence of record.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion).

For all the foregoing reasons, the Board finds that service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability, is not warranted.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

IV.   Extension of a Temporary Total Rating

The Veteran contends that a temporary total disability rating is warranted from July 23, 2008 when he underwent a right ankle arthrodesis surgery until the next temporary total disability rating period that began on June 8, 2011 (and continued through August 31, 2011) when he underwent a right tibiotalar and right subtalar joint arthrodesis and removal of hardware.  

A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. § 4.30, effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release.  38 C.F.R. § 4.30. 

A total rating will be assigned under 38 C.F.R. § 4.30 if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more.  Id.  The ankle is a major joint for VA compensation purposes.  38 C.F.R. § 4.55. 

The provisions of 38 C.F.R. § 4.30 specify that a reduction of the total rating will not be subject to the due process provisions of 38 C.F.R. § 3.105(e), and is to be followed by an open rating reflecting the appropriate schedular evaluation.  An extension beyond an initial 3-month period is allowable but requires full justification.  38 C.F.R. § 4.30(b)(1).  An extension of 1 or more months up to 6 months beyond a 6-month period may be made upon approval of the Veterans Service Center Manager.  38 C.F.R. § 4.30(b)(2).

The Veteran is service-connected for residuals of a right ankle trimalleolar fracture and he underwent right ankle arthrodesis surgery at the Pittsburgh VA Healthcare System on July 23, 2008.  Evidence of record reflects that the Veteran last worked as a dialysis nurse in August 2005.  A July 2008 return to work verification indicated that the Veteran would be unable to work for approximately six months following his surgery.  

During a November 2008 orthopedic surgery follow up visit, the Veteran stated that he was pleased with the surgical outcome and he noted much improvement since the surgery.  He reported getting pain at the end of the day rated as 2/10 and a little irritation on the medial side of the right ankle at times.  He indicated that he had been in his Cam boot most of the time with the assistance of crutches, and one month previously he started using a cane to assist in ambulation.  Following a physical examination and x-ray examination, the plan included transitioning to regular shoe wear, such as a supportive boot, but returning to the Cam walker [boot] with the assistance of the cane if pain or swelling increased.  He was able to weight bear as tolerated.  Despite being unemployed, he was advised to continue off work for the next two months.  The Veteran was granted a temporary total rating for convalescence through January 31, 2009, and a schedular, 30 percent rating was assigned effective February 1, 2009.

During a February 2009 follow-up visit for status post right ankle fusion, the Veteran stated that he had some mild pain from that, but his current complaint was right knee pain.  During a March 2009 follow-up visit, he reported that his right ankle pain and mobility had improved since surgery and he was ambulating in lace-up ankle boots and using a cane.  The assessment was status post right ankle arthrodesis progressing well.  The Veteran returned in May 2009 with complaints of anterior right ankle pain.  He continued to ambulate with lace-up ankle boots using a cane.  The assessment was deep peroneal nerve entrapment with normal radiographs.  A physical therapy order was placed for twice per week for four to six weeks.  A July 2009 physical therapy note indicated that he tolerated treatment well.

During a July 2009 VA joints examination, the Veteran was not using an ankle brace at present, but was using a cane, which he used for any type of distance walking.

An August 2009 orthopedic note reflects that a CT scan of the right ankle joint demonstrated a lack of fusion of the ankle joint.  The plan was to [im]mobilize the Veteran in a boot with bone stimulation for three months.  An August 2009 physical therapy note indicated that the Veteran was discharged from outpatient physical therapy service because he stopped attending sessions.  Other VA treatment records dated in August 2009 indicate that the Veteran was started on Methadone for right ankle pain and continued to use a cane for ambulation.  In December 2009, he stated that his pain had decreased since he had been immobilized in a Cam boot, but he had some instability when walking barefoot.  On examination, he had no sagittal motion and his hindfoot motion was markedly restricted; nonetheless, his ankle was stable and he had a good plantigrade well-aligned hindfoot.

During January 2010 orthopedic follow-up, he continued to ambulate in a Cam walker or boot and rated his pain as a 3/10.  He was instructed to continue the bone stimulator and to return in three months to see if his ankle was continuing to consolidate well.  A February 2010 work status verification signed by the Veteran's VA orthopedic surgeon indicated that the Veteran was seen in January 2010 and he was off work until a date to be determined at the next visit in April 2010.  

During a March 17, 2010 VA orthopedic follow-up visit, the Veteran reported continued right ankle pain rated as moderate to severe and walking ability limited to less than one block with severe difficulty on uneven surfaces and terrain.  Objective findings included no motion at the ankle and minimal motion at the subtalar joint with a marked gait abnormality.  A CT scan was obtained and revealed areas that were encouraging for healing; however, the ankle did appear to be ununited.  The assessment was nonunion right ankle status post right ankle arthrodesis.  In May 2010, the orthopedist ordered a double upright brace with custom shoes and inserts with a rocker bottom on the right shoe.  He explained that the Veteran had a nonunion, was disabled, and was still recovering from the surgical procedure, and he expected the Veteran to be in this state for six months.  A June 2010 work status verification indicated that the Veteran was seen on March 17, 2010 and was off work from February 1, 2009 until September 17, 2010.

An October 2010 orthopedic note related that the Veteran had an established nonunion after the July 2008 surgery; he was treated with a bone stimulator and a double-upright AFO [ankle foot arthosis], which did decrease his pain at times; and he had previously been reluctant when discussing a revision of the ankle arthrodesis.  However, he did not believe he was getting better and agreed to surgery.

In November 2010 correspondence, the Veteran requested an extension of the temporary total rating for convalescence for after the July 2008 surgery until June 2011 when he was scheduled to have a second right ankle surgery.

Subsequent VA treatment records reveal that he underwent a right tibiotalar and right subtalar joint arthrodesis and removal of hardware on June 8, 2011.  

In January 2013 the Veteran testified that his doctor told him that it would take one and a half to two years for his right ankle to heal after the July 2008 surgery.  He stated that he continued to have pain, by June 2009 he could not walk at all, and a CT scan revealed that the ankle joint did not fuse, so he had to have a second surgery because the first surgery failed.  He reported that after he stopped physical therapy in August 2009, his doctor did not provide a letter stating that he should work because he was retired from nursing at the time, so a note was not necessary.

The Board has considered the medical and lay evidence of record, but finds that an extension of a temporary total rating from February 1, 2009 and beyond for right ankle surgery performed on July 23, 2008 is not warranted.  

Competent medical evidence reflects that by November 2008 the Veteran began transitioning to regular shoe wear and bearing weight as tolerated.  In February and March 2009, he was reporting mild pain that was improving, and he walked with lace-up ankle boots and a cane.  In addition, although therapeutic immobilization with bone stimulation was started to promote further healing in August 2009 after a July 2009 CT scan revealed nonunion of the right ankle, the evidence of record does not reflect that the Veteran's treating physicians prescribed or recommended continued convalescence based on the July 2008 surgery.  

Notably, by March 2009 he was ambulating in lace-up ankle boots and using a cane and continued to do so until August 2009.  Contemporaneous medical records do not identify severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of the ankle, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by cast, without surgery.  Instead, the records show at least a five-month period after the temporary total rating for convalescence ended on January 31, 2009 in which the requirements for an extended period for convalescence were not shown.

Again, the applicable regulation explicitly requires that the need for convalescence be established by the record of hospital discharge or outpatient care following which such convalescence was required, or that treatment records otherwise meet the regulatory requirements.  There is no such medical record of the need for continued convalescent care from February 1, 2009 and beyond following the Veteran's right ankle surgery.  Thus, regardless of whether the Veteran subsequently required immobilization of the right ankle with bone stimulation in August 2009 due to nonunion of the ankle, such treatment initiated after he was allowed by his orthopedic physicians to stop using a Cam boot and crutches in November 2008 and after he was ambulating with lace-up boots and a cane by February 2009 or earlier does not equate with convalescence, and does not give rise to an entitlement to an extended temporary total rating based on need for convalescence.  38 C.F.R. § 4.30.  

Similarly, although the May 2010 orthopedist indicated that the Veteran had a nonunion, was disabled and still recovering from the surgical procedure, and he expected the Veteran to be in this state for six months, the evidence clearly reflects a period of at least five months after the first temporary total rating for convalescence ended in which convalescence was not ordered by a treating physician or shown by the record.  

The Board also acknowledges the February 2010 and June 2010 work status verifications forms retroactively excusing the Veteran from work from January through April 2010 and from February 2009 through September 2010, respectively.  However, the Veteran had not been working since August 2005, and in contrast to those notes, the contemporaneous medical records did not otherwise outline an ongoing need for convalescence from February 1, 2009 and beyond.  

The balance of the medical records within the claims file similarly inform of no need for convalescence from February 1, 2009 and beyond and/or continuing until the right ankle surgery performed on June 8, 2011. 

Thus, with due consideration of the Veteran's assertions about the need for continued convalescence required because his right ankle did not fuse after the July 2008 surgery, as well as consideration of the relevant medical evidence of record, the Board finds that the preponderance of the evidence is against entitlement to an extension of a temporary total rating based on need for convalescence following the Veteran's July 2008 right ankle surgery because there is no medical record informing that extended convalescence was required beyond February 1, 2009.  38 C.F.R. § 4.30.  The above-noted treatment records outweigh the Veteran's assertions to the extent they purport to support any prolonged period (lasting years beyond the period of a temporary total rating from July 23, 2008 through January 31, 2009) of need for use of therapeutic immobilization with a Cam boot.

The preponderance of the evidence also does not show that the right ankle surgery on July 23, 2008, resulted in post-operative severely debilitating residuals or need for ongoing care, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more between February 2009 and August 2009, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or that the surgery resulted in immobilization by cast, without surgery, of one major joint or more.  38 C.F.R. § 4.30. 

While sympathetic to the Veteran's assertions, the preponderance of the evidence is against the claim, and, therefore, the benefit of the doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

V.   Increased Rating

A.  Relevant Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Schafrath, 1 Vet. App. at 594.  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012).

B.  Facts and Analysis

The Veteran is service-connected for residuals of a right ankle trimalleolar fracture due to a football injury during service in February 1966.  He underwent immediate open reduction and internal fixation during service, and the pin was removed months later.

The September 2009 rating decision that increased the assigned rating for a right ankle disability to 30 percent effective from February 1, 2009 indicated that the Veteran's right ankle severe limitation of motion with significant pain and frequency of flare-ups more closely approximated the criteria for ankylosis of the ankle.  However, the rating sheet still indicated that the Veteran's disability was rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271.  The Board notes that Diagnostic Code 5270 addresses ankylosis of the ankle and provides for a higher, 40 percent, rating than the 30 percent rating currently assigned from February 1, 2009 through March 16, 2010.  The Veteran's right ankle disability is rated as 40 percent disabling from March 17, 2010 through June 7, 2010 and from September 1, 2011.  He contends that a rating higher than 30 percent is warranted prior to March 17, 2010 (from February 1, 2009 through March 16, 2010).  

5270
Ankle, ankylosis of:

In plantar flexion at more than 40º, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity
40

In plantar flexion, between 30º and 40º, or in dorsiflexion, between 0º and 10º
30

In plantar flexion, less than 30º
20

5271
Ankle, limited motion of:

Marked
20

Moderate  
10

5272
Subastragalar or tarsal joint, ankylosis of:

In poor weight-bearing position  
20

In good weight-bearing position
10

5273
Os calcis or astragalus, malunion of:

Marked deformity
20

Moderate deformity  
10

5274
Astragalectomy  
20
38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274 (2012).

The Schedule for Rating Disabilities defines full range of motion of the ankle as zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 

38 C.F.R. § 4.71a, Plate II (2012).

In July 2008, the Veteran underwent a right ankle arthrodesis surgery, which results in an artificial ankylosis or immobility of the joint.  See Dorland's Illustrated Medical Dictionary, 93 (30th ed. 2003) (defining ankylosis).

During a November 2008 orthopedic surgery follow up visit, the Veteran stated that he was pleased with the surgical outcome and that he noted much improvement since the surgery.  He reported getting pain at the end of the day rated as 2/10 and a little irritation on the medial side of the right ankle at times.  He indicated that he had been in his Cam boot most of the time with the assistance of crutches, and one month ago he started using a cane to assist in ambulation.  Following a physical examination and x-ray examination, the plan included transitioning to regular shoe wear, such as a supportive boot, but returning to the Cam Walker with the assistance of the cane if pain or swelling increased.  He was able to weight bear as tolerated.  He was advised to continue off work for the next two months.

During a February 2009 follow-up visit for status post right ankle fusion, the Veteran stated that he had some mild pain from that, but his current complaint was right knee pain.  

On VA examination in July 2009, the Veteran's reported symptoms included pain, weakness, and instability.  He walked with a cane.  On right ankle range of motion testing, he had right ankle dorsiflexion to 2 to 3 degrees and plantar flexion to 5 degrees.  There was objective evidence of pain with motion, including increased pain with repetitive range of motion.  However, he had no increased weakness, decreased endurance, incoordination, or change in degrees of range of motion following repetitive motion.  Additional examination findings included tenderness with palpation over the anterior ankle and medial malleolus, no redness, no excessive warmth, no effusion, strength with dorsiflexion and plantar flexion was 4-5 with giving away of the right lower leg.  He was also observed to have an antalgic gait favoring the right ankle, leaning heavily on a cane.

On orthopedic follow-up examination in August 2009, examination of the right ankle revealed no sagittal motion and markedly restricted hindfoot motion; however, his ankle was stable, and he had a good plantigrade well-aligned hindfoot.

During January 2010 orthopedic follow-up, he continued to ambulate in a Cam walker or boot and rated his pain as a 3/10.  He was instructed to continue the bone stimulator and to return in three months to see if his ankle was continuing to consolidate well.

During a March 17, 2010 VA orthopedic follow-up visit, the Veteran reported continued right ankle pain rated as moderate to severe and walking ability limited to less than one block with severe difficulty on uneven surfaces and terrain.  Objective findings included no motion at the ankle and minimal motion at the subtalar joint with a marked gait abnormality.  A CT scan was obtained and revealed areas that were encouraging for healing; however, the ankle did appear to be ununited.  The assessment was nonunion right ankle status post right ankle arthrodesis.

Subsequent VA treatment records reveal that the Veteran underwent a right tibiotalar and right subtalar joint arthrodesis and removal of hardware on June 8, 2011.

In January 2013, the Veteran testified that the [July] 2009 VA examination did not ask for range of motion of the joint.  He stated that he had been on methadone for three years for right ankle pain, but was getting off it now.  He believed that he had one or two right ankle flare-ups per week.  He reported occasional instability or giving way of his right ankle and needing to lean on his cane.  However, his wife testified that it happened quite frequently.  Then, the Veteran stated that his ankle gave out on him at least twice a week, maybe more.  He stated that he cuts the grass in the summertime, but does not walk for a while after he finished.

Resolving all doubt in favor of the Veteran, the Board finds that for the time period from February 1, 2009 through March 16, 2010, the Veteran's right ankle disability more nearly approximates the criteria for a 40 percent under Diagnostic Code 5270 for ankylosis of the ankle.  During this time his right ankle disability has been manifested by no motion of the ankle with the exception of dorsiflexion to 2 to 3 degrees and plantar flexion to 5 degrees on VA examination in July 2009 with objective evidence of pain.  Therefore, an increased rating is warranted for this time period.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

As noted in the introduction, the issue of whether an extraschedular rating is warranted for a right ankle disability at any time since February 1, 2009 is addressed in the Remand section below.


ORDER

New and material evidence having been received, the claim for entitlement to service connection for PTSD is reopened.

Service connection for an acquired psychiatric disorder, to include PTSD, is denied.

Service connection for a left ankle disability, to include as secondary to a service-connected right ankle disability, is denied.

Entitlement to an extension of a temporary total rating after July 23, 2008, for residuals of a trimalleolar right ankle fracture based on surgical treatment necessitating convalescence is denied.

For the time period from February 1, 2009 through March 16, 2010, entitlement to a 40 percent rating for a right ankle disability is granted, effective February 1, 2009, subject to the law and regulations governing the payment of monetary benefits.


REMAND

The Board's review of the claims file reveals that further action is warranted on the issues of an extraschedular rating for a right ankle disability and on the TDIU claim remaining on appeal. 

The Board notes that the 40 percent rating granted above and previously assigned for the right ankle disability from February 1, 2009 through June 7, 2011 and from September 1, 2011 is the highest rating available for disabilities of the ankle.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274; see also Diagnostic Code 5262 for evaluating impairment of the tibia and fibula.

Accordingly, VA is required to consider whether the Veteran's right ankle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). 

The Board observed that the RO considered whether an extraschedular rating was warranted for a right ankle disability in the January 2011 statement of the case and the July 2012 supplemental statement of the case.  However, these documents did not include a discussion regarding whether the regular schedular standards were adequate to rate the Veteran's right ankle disability or reflect consideration of the Veteran's usual occupation as a nurse.  Therefore, the issue of whether an extraschedular rating is warranted at any time since February 1, 2009 is remanded to provide the RO/AMC with an opportunity to address these deficiencies.

Regarding a TDIU, under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012).

The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

In this case, the Veteran has not met the objective, minimum percentage requirements (exclusive of periods of temporary total ratings) set forth in 38 C.F.R. § 4.16(a) for award of a TDIU.  His service-connected disabilities include residuals of a trimalleolar fracture of the right ankle, rated as 40 percent disabling effective February 1, 2009 (exclusive of a period of a temporary total rating from June 8, 2011 through August 31, 2011); type II diabetes mellitus, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; coronary artery disease/ischemic heart disease, rated as noncompensable; residuals of a right ankle scar, rated as noncompensable; and bilateral hearing loss, rated as noncompensable.  His combined schedular rating for compensation is 50 percent.

However, a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities (per 38 C.F.R. § 4.16(b)). 

During the pendency of his appeal, the Veteran has asserted that his right ankle disability, in particular, interferes with his ability to be employed in his usual occupation as a registered nurse.  Thus, he appears to raise the matter of his entitlement to a TDIU in the context of his claim for higher rating.  Given this, the claim for a TDIU is essentially a component of the claim for higher rating.  See Rice, 22 Vet. App. at 447.

The Board notes, however, that the RO has not adjudicated a claim for a TDIU.  Under these circumstances, after giving the Veteran an opportunity to file a formal claim for a TDIU-and completing the action pertinent to such claim-the RO should adjudicate the matter of the Veteran's entitlement to a TDIU due to service-connected disabilities, in the first instance, to avoid prejudice to the Veteran.  See e.g. Bernard v. Brown, Vet. App. 384 (1993).

Relevant ongoing VA medical records should also be requested from the University Drive VA medical center in Pittsburgh, Pennsylvania dating since July 2012.  See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Relevant ongoing VA treatment records dating since July 2012 to the present from the University Drive VA medical center should be obtained and associated with the claims file.

2.  The RO should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to service-connected disabilities.

3.  After completing the requested actions, and any additional notification and/or development deemed warranted, the AMC/RO should adjudicate the claim for a TDIU due to service-connected disabilities in light of all pertinent evidence and legal authority, to include, if necessary, whether a referral to the Director, Compensation and Pension Service is warranted for consideration of (1) a TDIU on an extraschedular basis or for (2) residuals of a trimalleolar right ankle fracture on an extraschedular basis.  A discussion regarding whether the regular schedular standards are adequate to rate the Veteran's right ankle disability and his usual occupation as a nurse should be included in discussions regarding referral for consideration of an extraschedular rating for the right ankle disability.  If the benefits sought on appeal remain denied, the RO/AMC must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The appellant 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 of Veterans' Appeals 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).




______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs