Citation Nr: 1314742	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  02-21 212	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for a seizure disorder, for purpose of accrued benefits.

2. Entitlement to service connection for memory impairment, for purpose of accrued benefits.

3. Entitlement to service connection for high blood pressure, for purpose of accrued benefits.

4. Entitlement to service connection for asthma, for purpose of accrued benefits.

5. Entitlement to service connection for headaches, for purpose of accrued benefits.

6. Entitlement to service connection for an anxiety disorder, for purpose of accrued benefits.
7. Entitlement to service connection for a dermatological disorder, claimed as chronic acne, for purpose of accrued benefits.

8. Whether new and material evidence has been received to reopen a claim of service connection for narcolepsy, for purpose of accrued benefits. 

9. Whether new and material evidence has been received to reopen a claim of service connection for chloracne, for purpose of accrued benefits.

10. Entitlement to receipt of nonservice-connected pension benefits, for purpose of accrued benefits.

11. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for purpose of accrued benefits.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to June 1972. The Veteran died in April 2012 during the pendency of the original appeal. The Board of Veterans' Appeals (Board) issued a July 2012 dismissal of his appeal on the merits, since as a general matter, claims for compensation and pension benefits do not survive the death of the claimant. Thereafter, his widow filed a timely request to be substituted as the appellant in his place.

The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created a new provision which allows, in case of death of a claimant who dies on or after October 10, 2008, an eligible person to process a pending claim if a Veteran dies prior to completion of the claim. The request for substitution must be filed not later than one year after the date of the Veteran's death. A person eligible for this substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title . . . ." Id.; 38 U.S.C.A. § 5121A (West 2002 & Supp. 2012). The RO granted the request for substitution, and the Veteran's surviving spouse is the appellant in this case.

This matter originally came before the Board on appeal from rating decisions of               the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Through an October 2004 rating decision, the RO denied claims for service connection for posttraumatic stress disorder (PTSD), anxiety disorder, bilateral hearing loss, and tinnitus. In addition, the RO denied petitions to reopen previously denied claims for service connection for chronic acne (since recharacterized as stated on the title page above) and service connection for narcolepsy, and denied a claim for entitlement to a TDIU. Also on appeal was a January 2003 rating decision, in regard to the assigned effective date of service connection for diabetes mellitus, and appropriate disability evaluation for the same condition.

During pendency of the appeal, a March 2010 rating decision granted service connection for tinnitus, and that claim was removed from appellate consideration.

In its July 2010 Decision/Remand, the Board denied the issues of an earlier effective date for service connection for diabetes mellitus, an increased rating for the same, and service connection for bilateral hearing loss. The remaining matters were remanded for further development and consideration.

In April 2011, the RO issued a rating decision granting service connection for PTSD, and therefore that claim no longer requires the Board's review. However, inasmuch as the Board has never finally decided the claim for service connection for an anxiety disorder, the claim for entitlement to this distinguishable psychiatric disability (as a condition other than PTSD) remains outstanding on appeal. 

On present review of the record, it has come to the Board's attention that there are several additional claims in appellate status, appealed from a July 2001 RO issuance. Unfortunately, although the Veteran undertook proper measures to complete a formal appeal of these claims (including a timely VA Form 9 in response to the RO's Statement of the Case (SOC)), there was no Board decision issued in the matters appealed from the July 2001 rating decision. Under these circumstances, it is incumbent upon the Board to presently address these claims. The claims under consideration consist of entitlement to service connection for a seizure disorder, memory impairment, high blood pressure, asthma, and headaches, and a claim of entitlement to nonservice-connected pension. The Board incorporates these claims with the present appeal, as to entitlement sought for accrued benefits.

The Board clarifies one further matter in regard to the petition to reopen service connection for chloracne. At times this claim was characterized as a request to reopen service connection for a generalized dermatological condition, including chloracne and chronic acne. Careful review of the September 1998 final RO rating decision discloses, however, that it only denied service connection for chloracne (mentioning "chronic acne" in passing). Thus, the RO's October 2004 rating decision on appeal should have distinguished between a petition to reopen service connection for chloracne, and an original claim for service connection for chronic acne. The Board now makes this distinction, and the two issues on appeal are more accurately stated as set forth on the title page.

The Board will decide the issues of service connection for a seizure disorder, the petitions to reopen, and the claim for TDIU, and the remaining claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on her part. 


FINDINGS OF FACT

1. The Veteran's seizure disorder had its onset to a compensable level within          one year of service discharge.

2. With consideration of the disabilities for which retroactive service connection was granted to the date of submission of a September 2003 claim for TDIU, the Veteran was not capable of securing and maintaining substantially gainful employment, and his unemployability from the date of that claim was a consequence of service-connected disabilities.  

3. Through a September 1972 rating decision, the RO denied the Veteran's original claim for service connection for narcolepsy, and the Veteran did not commence an appeal of that decision. 

4. Through a September 1998 rating decision, the RO denied the Veteran's original claim for service connection for chloracne, and he did not appeal therefrom. 

5. Since then, no additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claims for service connection for narcolepsy or chloracne.
CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the appellant's favor, the criteria are met to establish service connection for a seizure disorder, for purpose of accrued benefits. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(b), 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.1000(a) (2012).

2. Resolving reasonable doubt in the appellant's favor, the criteria are met for a TDIU for purpose of accrued benefits.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), 5121, 5121A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1000(a), 4.3, 4.15, 4.16, 4.19 (2012). 

3. The September 1972 RO rating decision which denied service connection for narcolepsy became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.201 (2012).

4. The September 1998 RO rating decision which denied service connection for chloracne became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.200, 20.201 (2012).

5. New and material evidence has not been received to reopen the previously denied claims for service connection for narcolepsy or chloracne, for purpose of accrued benefits. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012).






								(CONT. ON NEXT PAGE)
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist the Veteran

The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.    §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)       must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence.

As indicated below, the Board is granting the benefits sought on appeal of entitlement to service connection for a seizure disorder, and a TDIU, for purpose of accrued benefits. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of these matters, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). 

Pertaining to the petitions to reopen previously denied claims, through VCAA notice correspondence dated from May 2004 through September 2010,                          the RO/AMC notified the Veteran (and by implication, the substituted appellant      in this case) as to each element of satisfactory notice set forth under 38 U.S.C.A.      § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and the appellant to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Meanwhile, an addendum to the September 2010 correspondence provided information regarding a claim-specific definition of "new and material" evidence as it pertained to the disposition of this case. 

The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim.            See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The initial September 2003 and May 2004 VCAA notice letters preceded issuance of the October 2004 RO rating decision adjudicating the petitions to reopen, and thereby comported with the definition of timely notice. Meanwhile, the September 2010 VCAA notice correspondence was issued subsequent to the aforementioned RO rating decision, and technically did not meet the definition for what constitutes timely notice.              This notwithstanding, there has been an adequate opportunity to respond to the September 2010 correspondence before issuance of the April 2011 Supplemental SOC (SSOC) continuing the denial of his claims. 

Moreover, there is no indication of any further available information or evidence to obtain to support the claims. Thus, there has been the full opportunity to participate in the adjudication of these claims. See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). 

The RO/AMC has taken appropriate action to comply with the duty to assist                   in this case, through obtaining service treatment records (STRs), extensive records of VA outpatient treatment and hospitalization, private treatment records, and records pertaining to disability benefits from the Social Security Administration (SSA). The Board at this time also observes that it is not necessary that a VA medical opinion is obtained at this time, as there is not a duty-to-assist obligation where involving a petition to reopen a previously denied claim. See 38 C.F.R. 3.159(c). 

In support of his claims, the Veteran (again, including the appellant as the substituted claimant) provided several personal statements, and additional private treatment records. There is no outstanding request for a hearing. There is no indication of any further available evidence or information that has not already been obtained. Thus, the record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the claimant.

In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. 


Background and Analysis 

Service Connection for a Seizure Disorder

The applicable law provides that, upon the death of an individual receiving benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not more than two-years prior to the last date of entitlement. See 38 U.S.C.A.                § 5121 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1000(a) (2012). An amendment to 38 U.S.C.A. § 5121 removed the two-year restriction upon payment of accrued benefits, providing that a claimant may recover the full amount due prior to the date of the veteran's death. This amendment applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Since in this case the Veteran died following the date of enactment, the revised provision is applicable. An application for accrued benefits must be filed within one year after the date of the veteran's death. 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c).      See also Smith v. Brown, 10 Vet. App. 330, 333 (1997).

Regarding most claims for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death.         There is an exception for outstanding service medical records or VA records, as they are considered to be in the constructive possession of VA at the time of death. See 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4). See also Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993).

As indicated here, however, the RO substituted the appellant as the eligible survivor of the Veteran for purposes of pursuing a claim for accrued benefits. Unlike prior accrued benefits claims, where there has been substitution under 38 U.S.C.A.                     § 5121A the record is not closed on the date of death of the original claimant,         but remains open for the submission and development of any pertinent additional evidence.

Generally, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.                         38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).

The elements of a valid claim for direct service connection are as follows:                    (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).

Moreover, certain chronic diseases, such as epilepsies, may be presumptively service connected if manifested to a compensable degree in the first post-service year. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Where the presumption of service connection applies, the claimant does not need to indicate by competent evidence that his or her claimed condition was incurred or aggravated        in service, as required to establish direct service connection.

In the instant case, the Veteran did not manifest seizures at any point during        active military service, according to in-service medical documentation.                             This notwithstanding, records of VA outpatient medical treatment nearly immediately following discharge from service in June 1972 show that the Veteran was evaluated for a suspected seizure disorder. A July1972 VA clinical record then indicates that the Veteran had experienced two to three probable grand mal seizures the previous month, and Dilantin was prescribed. The Board can only reach the reasonable conclusion from the foregoing that the Veteran's seizures manifested within one year of separation from service, and moreover, given the presence of two to three grand mal seizures this condition likely manifested to a compensable level within that timeframe. There is likewise a history of further VA post-service evaluation and treatment for seizures from 1999 through 2001. While the Board does not have before it the most current possible diagnosis of a seizure disorder, all that is required to establish a present disability is that the condition manifest contemporaneous with when the Veteran first filed his claim for service connection, which is the case in this instance. See generally, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Consequently, the basic requirements for recovery under       the law pertaining to presumptive service connection have been met. See 38 C.F.R. §§ 3.307, 3.309. 

Accordingly, on this basis, the claim for service connection for a seizure disorder, for purpose of accrued benefits, is granted. 

TDIU

Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16 (2012). If the claimant does not meet the minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b) (2012).

In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. 

The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id. See also 38 C.F.R. §§ 4.1, 4.15. 

In evaluating a claim for a TDIU, 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). Other factors that may receive consideration in determining whether a Veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or the Veteran's age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.341, 4.16, 4.19.

In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000).  Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage").

Having closely reviewed the evidence in this case, the Board is of the opinion that the Veteran met the criteria for TDIU from the date of receipt of his claim for TDIU in September 2003.  To begin with, the Veteran effectively met the preliminary schedular requirement for assignment of a TDIU given that he had at least one service-connected disability evaluated at 60 percent or higher, in this case, the retroactively assigned 70 percent rating for PTSD, or in the alternative, the 60 percent rating for ischemic heart disease, assigned effective from September 30, 2003, the date of submission of the claim for TDIU. See 38 C.F.R. § 4.16(a). 

Other service-connected disabilities in effect during the timeframe in question consist of diabetes mellitus, type II, rated at 20 percent, and tinnitus, rated at 10 percent. Also noted is the grant of service connection for seizures within the instant Board decision.  Although no disability evaluation has been assigned yet by the RO for that disability, seizures may still be considered amongst those service-connected disabilities which have prospectively contributed to employment limitations. 

The initial schedular component of the criteria for a TDIU being fulfilled, the dispositive issue becomes whether the Veteran was incapable of securing and maintaining substantially gainful employment due to service-connected disability. When applying VA's doctrine of resolving reasonable doubt in the claimant's favor on material issues presented for consideration, under 38 C.F.R. § 4.3, the Board ascertains a sufficient showing of unemployability attributable to service-connected disability. Records indicate a January 2002 private psychological evaluation which observed that the Veteran functioned in the range of moderate mental retardation, and further noted his long-term history of seizures. In the view of this psychologist, "it would certainly be very difficult for [the Veteran] to handle a job in a competitive work environment and most people who function at his intellectual level actually work in sheltered situations, if employed. He is not capable of managing his own finances." This psychological evaluation is technically outside the relevant time period for review, and does not directly reference the service-connected PTSD condition, but nonetheless provides a nearly contemporaneous portrayal of the effect of overall mental capacity on employability. Moreover,      the Veteran in October 2003 experienced an acute myocardial infarction, directly related to his service-connected ischemic heart disease, and then underwent a quintuple bypass procedure. 

The Board further notes that the Veteran had at most a high school education, and a very limited employment history in non-sedentary manual labor job positions that would require some minimal level of physical capacity. Given these underlying clinical and medical concerns, as well as educational and employment history, the Board finds it highly unlikely that the Veteran could have secured and maintained gainful employment. At the very least, resolving reasonable doubt in the Veteran's favor, the complete requirements for assignment of a TDIU have been met.  

The claimant's electronic VA records ("Virtual VA" file) indicate that, by an October 2011 RO rating decision, the Veteran was granted service connection for ischemic heart disease (associated with herbicide exposure) with a disability rating that reached the 100 percent level effective October 21, 2003, reverted to 60 percent effective February 1, 2004, and resumed at 100 percent from April 1, 2007 onwards. Under VA law, the assignment of a 100 percent evaluation for a service-connected disability does not necessarily render moot a TDIU claim. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted. However, in this particular case, the Veteran already had another disability separately rated at 70 percent, service-connected PTSD. Indeed, the RO's October 2011 rating decision recognized this fact, expressly granting SMC for housebound status under subsection 1114(s), from October 21, 2003 to January 31, 2004, and then from April 1, 2007 onwards. 

Because the rate of compensation which the Veteran was paid during his lifetime under 38 U.S.C.A. § 1114(s) exceeds the benefit for a total (100 percent) rate of compensation [by about $300 monthly for a Veteran with a dependant spouse], as a practical matter, the award of SMC from October 21, 2003 to January 31, 2004, and then from April 1, 2007 onwards limit the time period for which entitlement to an award of TDIU may benefit the appellant, as substituted for the Veteran.  Thus, the facts and law regarding potential entitlement to TDIU have been addressed from September 30, 2003, when the Veteran submitted the claim, to March 31, 2007, since there were periods prior to March 31, 2007, when SMC under section 1114(s) was not in effect.  

The claim for TDIU for the period from October 21, 2003 to February 1, 2004, and from March 31, 2007 appears to be rendered a moot issue by reason of the award of 100 percent service-connected disability concurrent with sufficient additional disability to meet the requirements of SMC at the rate specified under 38 U.S.C.A. § 1114(s), from that date.  To the extent that a claim for TDIU is not moot, an award of TDIU from September 30, 2003, is warranted.

Petition to Reopen Service Connection for Narcolepsy

As indicated, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service.                         38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection is also available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service.  In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 

Under VA law, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137.

Through a September 1972 rating decision, the RO denied the Veteran's original claim for service connection for narcolepsy. The evidence before the RO was limited to STRs and some VA and private outpatient treatment records.                   The decisional rationale was that even while the Veteran's service entrance examination was negative, through his own statements he indicated that the condition existed prior to service. There was nothing to then indicate that the condition was aggravated by service. On these grounds, service connection was denied. The Veteran did not file an appeal of this decision, and hence it became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.201.

VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  However, despite the change in interpretation of 38 U.S.C.A. § 1111, no liberalizing provision has been enacted, and the decision as rendered in 1972 remains final.

When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

For purposes of the present appeal, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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. For the purpose of establishing whether new and material evidence has been submitted,         the credibility of the evidence, although not its weight, is to be presumed.        Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996).

In order to warrant reopening the claim for service connection for narcolepsy, there would have to be provided some concrete evidence that would present a reasonable possibility of substantiating that the claimed condition underwent measurable and permanent in-service aggravation. While there has been extensive evidence added to the claims file since the RO originally denied this claim, the Board's review of the new evidence reveals little in the way of additional findings that might help substantiate this previously denied matter.

No additional service treatment records have been added to the claims file since the initial denial of the claim.  The additional evidence includes primarily additional records of VA outpatient medical treatment, some private physician's reports, reports of VA Compensation and Pension examinations (some for general medical evaluation, and others for specific claimed conditions), and records pertaining to an ongoing claim for disability benefits from the Social Security Administration. Having carefully reviewed these sources of evidence, the Board's observation is that the record is largely devoid of mention of the condition of narcolepsy, much less provides any indication or suggestion that the claimed condition substantially worsened during the Veteran's period of active duty service. Ideally, some pronouncement from an evaluating medical provider who had the opportunity to objectively review the record would be of assistance in demonstrating potential in-service aggravation, but such an opinion clearly is not forthcoming from the record. Nor for that matter is there any competent lay testimony from the Veteran during his lifetime forthcoming that was not already of record which offers new insight into how the identified condition may have become worse during military service.

Since the lack of proof of the element of in-service aggravation was the basis for the former denial of benefits, for new evidence to be material it would have to relate to this unestablished fact. The newly-received evidence does not meet this requirement. Therefore, the criteria for receipt of new and material evidence to reopen service connection for narcolepsy, for purpose of accrued benefits, have not been met, the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


Petition to Reopen Service Connection for Chloracne

In addition to the general principles governing claims for direct service connection, pertinent VA law further provides that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). For purposes of application of this legal presumption, service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii).

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The exception to this rule is that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military service.

The provisions for presumptive service connection nonetheless do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044            (Fed. Cir. 1994).

In a September 1998 rating decision, the RO adjudicated and denied the Veteran's original claim for service connection for chloracne. The evidence before the RO was similar to that involved in the previous decision, apart from a detailed 1997 diagnostic summary from an evaluating physician. The rationale for this decision was the total absence of mention of chloracne from the Veteran's medical history, including recent and in-service history. The RO observed that there was from the identified 1997 physician's report indication of "chronic acne," but nothing to actually indicate or suggest chloracne. Therefore, absent any diagnosis of the condition claimed, the RO denied service connection. This decision also became final on the merits.  

Under VA law, the first essential criterion to establish service connection is competent evidence of the current disability claimed. Moore v. Nicholson,             21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability.");  Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski,                   3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.").

Based upon the Board's review of the extensive sources of new evidence provided since the RO last considered the issue of service connection for chloracne, there          is no competent indication anywhere that the Veteran during his lifetime experienced the dermatological condition of chloracne, or other acneform disease consistent with chloracne. There is simply no competent diagnosis of the condition of chloracne claimed anywhere in the documented medical history. The medical evidence does distinguish chloracne from acne.  Whereas a claimant is generally deemed competent to report symptomatology within his or her own lay observation, such as a disorder of the skin, the issue of diagnosis of a specific clinical condition such as chloracne ultimately is a matter requiring medical knowledge. In any event, the Veteran had not described experiencing any consistent symptoms of dermatological findings that would otherwise warrant further inquiry into whether he indeed had the condition of chloracne, since medical providers declined to assign such a diagnosis, after reviewing the Veteran's lay descriptions of his skin disorder and seeing the evidence of a skin disorder on objective examination. 

Absent competent evidence supporting a current diagnosis of chloracne, new and material evidence to reopen the previously denied claim has not been received. Hence, the benefit-of-the-doubt doctrine does not apply, and the petition to reopen must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

Service connection for a seizure disorder, for purpose of accrued benefits,                        is granted.

TDIU from September 30, 2003, for purpose of accrued benefits, is granted.

The petition to reopen a claim of service connection for narcolepsy, for purpose of accrued benefits, is denied. 

The petition to reopen a claim of service connection for a skin disorder, claimed as chronic acne or chloracne, for purpose of accrued benefits, is denied.


REMAND

There are numerous remaining claims in this case which require initial notification to the appellant of the provisions of the VCAA and the opportunity to submit additional relevant evidence and information. This consists primarily of those claims denied pursuant to the RO's July 2001 rating decision -- claims for service connection for a seizure disorder, memory impairment, high blood pressure, asthma, and headaches. Also warranting a VCAA letter issuance is the claim determined to have an independent basis from the petition to reopen service connection for chloracne (and meriting de novo consideration), that of service connection for a dermatological disorder (other than chloracne).  

Moreover, on remand, the RO/AMC should readjudicate and issue a Supplemental Statement of the Case on these claims, as well as the claim for nonservice-connected pension, in light of the fact that there have been several volumes of new evidence added to the claims file since these matters were last adjudicated.            See 38 C.F.R. § 19.31 (2012). 

Pertinent to the claim for service connection for an anxiety disorder, the Board finds it would be helpful to have a supplemental opinion from the Veteran's December 2010 VA psychological examiner as to whether the claimed condition has any causal connection to or association with service-connected PTSD. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim).  

Accordingly, these claims are REMANDED for the following action:

1. Prior to further consideration of the claims for service connection for a seizure disorder, memory impairment, high blood pressure, asthma, headaches, and a dermatological disorder other than chloracne, for purposes of accrued benefits, the RO/AMC should sent the appellant a VCAA letter in accordance with                             38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), and all other applicable legal precedent.

2. The RO/AMC should return the claims folder to the VA examiner who conducted the VA psychological examination of December 2010, and request a supplemental opinion. The examiner is requested to determine whether there was appropriate an additional diagnosis of an anxiety disorder, and if so, whether this condition is at least as likely as not (50 percent or greater probability) part and parcel of service-connected PTSD, or is otherwise etiologically related to active military service. 

The VA examiner is reminded of the need to provide a complete and thorough rationale for all conclusions reached. Provided that the December 2010 examiner          is not available, or is no longer employed by VA, obtain an opinion from another qualified mental health practitioner that addresses the inquiries set forth above regarding the disability claimed.

3. After completion of the foregoing, the RO/AMC should then review the claims file. If the directive specified in this remand has not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998).

4. Thereafter, the RO/AMC should readjudicate the matters of service connection for an anxiety disorder, memory impairment, high blood pressure, asthma, headaches, and a dermatological disorder other than chloracne, as well as entitlement to nonservice-connected pension, all for purposes of accrued benefits, in light of the evidence of record. If the benefits sought on appeal are not granted, the appellant and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
TRESA M. SCHLECHT
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs