Citation Nr: 1319682	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  06-25 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased initial rating for residuals of a crushed L1 vertebra, rated as 10 percent disabling prior to September 8, 2006 and as 20 percent disabling thereafter. 

2.  Entitlement to an initial rating in excess of 20 percent for residuals of a neck injury, to include cervalgia. 

3.  Entitlement to an initial rating in excess of 30 percent for right upper extremity neuropathy. 

4.  Entitlement to an initial rating in excess of 10 percent for right tennis elbow. 

5.  Entitlement to an initial compensable rating for headaches. 

6.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 

7.  Entitlement to an initial rating in excess of 10 percent for tinnitus. 

8.  Entitlement to an initial compensable rating for bilateral hearing loss.  

9.  Entitlement to service connection for a gastrointestinal (GI) disability claimed as irritable bowel syndrome (IBS), to include as secondary to service-connected residuals of lumbar and cervical spine injuries. 

10.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hemorrhoids. 

11.  Entitlement to service connection for hemorrhoids, to include as secondary to service-connected residuals of a crushed L1 vertebra.

12.  Entitlement to an effective date earlier than December 19, 2008 for the award of service connection for post concussion syndrome due to traumatic brain injury (TBI). 

13.  Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Riley, Counsel

INTRODUCTION

The Veteran served on active duty from March 1990 to September 1996 and from August 2002 to March 2004.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, and an October 2009 rating issued by the RO in St. Petersburg, Florida.  Jurisdiction over the claims file is currently held by the RO in St. Petersburg.   

The March 2005 rating decision on appeal granted service connection for residuals of a crushed L1 vertebra, residuals of a neck injury, to include cervalgia, right tennis elbow, and headaches, all effective March 5, 2004.  The October 2009 rating decision on appeal granted service connection for PTSD effective February 25, 2008, as well as tinnitus, post concussion syndrome due to TBI, and bilateral hearing loss, all effective December 19, 2008.  The October 2009 rating decision also denied service connection for IBS and found that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for hemorrhoids.  

On his January 2012 substantive appeal, the Veteran requested to testify before a Veterans Law Judge at the RO.  The hearing was scheduled for April 16, 2013, and the Veteran received notice of the hearing in a March 2013 letter from VA.  The Veteran failed to report for the hearing without good cause.  The Board therefore finds that the hearing request has been withdrawn in accordance with 38 C.F.R. § 20.704(d) (2012).

In April 2009 and September 2011, the Board remanded the case for further action by the originating agency.  The case has now returned to the Board for further appellate action.

When the case was previously before the Board, the issues on appeal included entitlement to earlier effective dates for the awards of service connection for PTSD and tinnitus.  The Board remanded these claims for the issuance of a statement of the case (SOC) in accordance with Manlicon v. West, 12 Vet. App. 238, 240-241 (1999).  In December 2012, VA issued a SOC addressing the claims for earlier effective dates.  The Veteran did not respond with a VA Form 9 or other correspondence indicating a desire to further pursue his appeal with respect to these issues.  VA has not provided any indication to the Veteran that this claims remain on appeal, and the Board finds that VA has not explicitly or implicitly waived the requirement for a substantive appeal.  See Percy v. Shinseki, 23 Vet.App. 37 (2009).  Therefore, the claims for entitlement to earlier effective dates for the awards of service connection for PTSD and tinnitus are no longer before the Board. 

In August 2011, the Veteran filed a claim for whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypogonadism, to include as secondary to post concussion syndrome due to TBI.  This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.  

The issues of entitlement to increased initial ratings for residuals of a crushed L1 vertebra, residuals of a neck injury, right upper extremity neuropathy, right tennis elbow, headaches, service connection for IBS, TDIU, and the reopened claim for entitlement to service connection for hemorrhoids 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.


FINDINGS OF FACT

1.  The Veteran's PTSD most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment and mood without total occupational and social impairment.

2.  The Veteran experiences constant bilateral ear tinnitus.

3.  The Veteran's bilateral hearing loss manifests Level II hearing impairment in the right ear and Level II hearing impairment in the left ear.

4.  The claim for service connection for hemorrhoids was initially denied in an unappealed March 2005 rating decision.  

5.  The evidence received since the March 2005 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.

6.  The Veteran's claim for service connection for residuals of a TBI was received on October 17, 2008 and entitlement to service connection arose on September 15, 2008.


CONCLUSIONS OF LAW

1.  The criteria for an initial 70 percent disability rating, but not higher, for PTSD have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

2.  There is no schedular basis for the assignment of a rating in excess of 10 percent for tinnitus.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260.

3.  The criteria for an initial compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

4.  New and material evidence has been received and the claim for entitlement to service connection for hemorrhoids is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

5.  The criteria for an effective date of October 17, 2008, but not earlier, for the grant of service connection for post concussion syndrome due to TBI are met.  38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating Claims

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is reviewed when making disability ratings.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).


PTSD

Service connection for PTSD was granted in the October 2009 rating decision on appeal.  An initial 50 percent evaluation was assigned effective February 25, 2008.  The Veteran contends that an increased rating is warranted for PTSD as the disability is productive of severe social and occupational impairment.  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a).

When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

The Veteran's PTSD is currently evaluated as 50 percent disabling under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130.  The Board notes that the Veteran has also been diagnosed with several nonservice-connected psychiatric disorders, including depressive disorder and a mood disorder.  VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996).  As the record does not contain medical evidence specifically differentiating the symptoms associated with each of the Veteran's psychiatric disorders, the Board will consider all his psychiatric symptoms and impairment when determining the proper rating for the service-connected PTSD.  

The Veteran's current 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Id.

A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

After review of the evidence, the Board finds that an initial 70 percent evaluation is warranted for the service-connected PTSD throughout the claims period.  With respect to the schedular criteria, the Veteran has endorsed several of the specific symptoms associated with a 70 percent rating.  Treatment records from various VA facilities and the Vet Center located in Sarasota, Florida document complaints of impaired impulse control (manifested by irritability and angry outbursts), abnormal speech, and panic/anxiety attacks.  Although the Veteran never presented with active suicidal ideation, he reported having thoughts of suicide in April 2008 at the Durham VA Medical Center (VAMC) and episodic suicidal ideation during the July 2009 VA examination.  The July 2009 VA examiner also specifically found that the Veteran met the criteria for an increased 70 percent rating, as he manifested occupational and social impairment with deficiencies in the areas of family relations, work, mood, and school.   The Veteran's PTSD has also endorsed other symptoms such as an anxious and depressed mood, concentration impairment, and sleep problems. 

The Veteran's Global Assessment of Functioning (GAF) scores have also established the presence of severe PTSD symptoms associated with an initial 70 percent rating.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2009)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  The Veteran's GAF scores have ranged from 70, consistent with mild symptoms, to 45, consistent with serious symptoms.  Id.  The Board notes that the majority of his GAF scores assigned by various treatment providers and the July 2009 VA examiner have fallen in the 51-60 range, associated with moderate symptoms.  The Veteran's Vet Center and private therapists have consistently described the overall impact of the service-connected PTSD as severe.  The Board therefore finds that the Veteran's GAF scores most nearly approximate the criteria associated with a 70 percent evaluation. 

The Veteran has also clearly endorsed occupational and social impairment that ranges from moderate to severe due to service-connected PTSD.  The Veteran worked until 2008 as a car sales manager, but has not been employed since that time.  The July 2009 VA examiner found that the Veteran had limited overall work performance due to PTSD, and the Veteran has consistently reported experiencing concentration and problems getting along with others that have impacted his ability to find employment.  The Veteran's social functioning has been more limited due to PTSD; the July 2009 VA examiner noted the Veteran's history of divorce, his uneven relationship with his sons, and an overall loss of functioning.  A March 2009 private neuropsychiatrist also concluded that the Veteran was suspicious, moody, and unstable, and maintained social distance from others.  Similarly, a VA neuropsychiatrist at the Bay Pines VAMC found that the Veteran was socially withdrawn.  

The criteria for a 70 percent rating for a psychiatric disability are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).  The Veteran's judgment and thinking have been consistently normal throughout the claims period, but treatment records and examination reports clearly document impairment to the Veteran's work, school, family relations, and mood.  Thus, an initial 70 percent evaluation is warranted throughout the claims period. 

The Board has also considered whether a total schedular rating is appropriate for the Veteran's PTSD, but finds that the service-connected disability has not most nearly approximated the criteria for a 100 percent rating under Diagnostic Code 9411 at any point during the claims period.  A 100 percent rating is warranted if the service-connected PTSD causes total occupational and social impairment, regardless of whether the Veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule.  See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).  In this case, the Veteran has clearly not demonstrated total occupational and social impairment.  Although the Veteran has not worked since 2008, statements from his VA and private neuropsychiatrists dated in March 2010 and January 2011 clearly attribute his lack of employment to problems associated with PTSD and residuals of a TBI.  There is no medical evidence that PTSD alone has resulted in total occupational impairment, and lay statements from the Veteran also link his unemployment to cognitive problems resulting from a TBI.  Regarding social impairment, the Veteran has experienced problems with social withdrawal due to PTSD, but has remained close to his sons and mother throughout the claims period.  In an October 2009 statement, the Veteran reported that he cared for his children and attended all of their team practices and games.  He has therefore clearly not manifested total social impairment.  The preponderance of the evidence is against a finding that the severity of the Veteran's symptoms are contemplated by a 100 percent rating as his PTSD has not approximated total occupational or social impairment at anytime during the claims period.  38 C.F.R. §§ 4.7, 4.21. 

The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none.  In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this period because the preponderance of the evidence is against the claim for a total schedular rating.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.



Tinnitus

Entitlement to service connection for tinnitus was granted in the October 2009 rating decision on appeal with an initial 10 percent rating assigned effective December 19, 2008.  The Veteran complained of constant bilateral tinnitus at the June 2009 VA audiological examination.  However, the current 10 percent evaluation is the maximum schedular rating available for tinnitus, whether the sound is heard in one ear, both ears, or the head.  38 C.F.R. §4.87, Diagnostic Code 6260.  Thus, a rating in excess of 10 percent is not warranted and there is no legal basis upon which to award a higher evaluation for tinnitus.  The Veteran's appeal must be denied.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  


Hearing Loss

Entitlement to service connection for bilateral hearing loss was granted in the October 2009 rating decision on appeal with an initial noncompensable evaluation assigned effective December 19, 2008.  The Veteran contends that a compensable rating is warranted as his hearing loss requires hearing aids and causes difficulty understanding speech. 

Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz.  38 C.F.R. § 4.85(a) and (d).  

To evaluate the degree of disability for service-connected bilateral hearing loss, the Rating Schedule establishes eleven (11) auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100.  The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  
To determine the severity of his hearing loss disability, the Veteran was provided a VA audiological examination in June 2009.  He complained of having difficulty hearing and understanding conversations.  An audiogram indicated pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
25
25
30
25
LEFT
25
30
       35
35
35

Speech audiometry revealed speech recognition ability of 90 percent in the right ear and 84 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss that was not disabling for VA purposes. 

The Veteran has also submitted the report of an August 2008 private audiological examination.  The private audiogram demonstrates bilateral hearing loss that is more severe than noted at the June 2009 VA examination.  The August 2008 private audiogram showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
30
30
45
LEFT
25
30
30
40
45

Speech audiometry revealed speech recognition ability of 100 percent bilaterally. 

With respect to both ears, the Veteran's highest pure tone threshold averages were demonstrated on the private August 2008 audiogram.  In contrast, the most severe word recognition scores were demonstrated at the June 2009 VA examination.  The Board will therefore use the results of the August 2008 audiogram with the word recognition scores from June 2009.  The pure tone threshold average of the right ear in August 2008 was 31 Hz with a word recognition score of 90 percent noted in June 2009.  This level of hearing impairment translates to Level II under Table VI.  Regarding the left ear, the August 2008 private examination demonstrated puretone threshold average of 36 Hz.  The left ear word recognition score was lowest at June 2009 VA examination when it measured 84 percent.  This level of impairment also translates to Level II under Table VI.  Level II hearing in the right ear and Level II hearing in the left ear warrants a noncompensable evaluation under the applicable criteria.  38 C.F.R. § 4.85, Diagnostic Code 6100.  
	
The Board is sympathetic to the Veteran's complaints related to his heating loss, but finds that there is no schedular basis for granting a compensable rating.  In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.


Other Considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's disabilities.  The Veteran's PTSD is manifested by symptoms that result in severe occupational and social impairment, while his hearing loss and tinnitus cause decreased hearing acuity.  These manifestations are specifically contemplated in the rating criteria.  The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted.



Claim to Reopen

The Veteran's claim for entitlement to service connection for hemorrhoids was initially denied in an unappealed March 2005 rating decision.  The RO found that the record did not establish the presence of a link between the Veteran's hemorrhoids and active duty service or a service-connected disability.  The Veteran did not appeal the March 2005 denial of the claim and the rating decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).  

A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  

The evidence received since the March 2005 denial of the claim includes a June 2008 letter from the Veteran's primary care physician at the Sarasota Community Based Outpatient Clinic (CBOC).  The VA physician found that the Veteran's hemorrhoids were due to nerve injuries and abnormalities associated with the service-connected residuals of a crushed L1 vertebra.  The Board finds that this evidence is new as it was not previously considered and is also material as it relates to a previously unestablished fact in the claim-a nexus between the Veteran's hemorrhoids and a service-connected disability.  Thus, the June 2008 VA medical opinion is sufficient to reopen the claim for entitlement to service connection.  


Earlier Effective Date Claim

The Veteran contends that an earlier effective date is warranted for the grant of service connection for post concussion syndrome due to TBI.  Service connection for post concussion syndrome due to TBI was granted in the October 2009 rating decision on appeal with an initial 100 percent rating assigned effective December 19, 2008. 

Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a) (West 2002).  The implementing regulation clarifies that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is later."  38 C.F.R. § 3.400 (2012).  

The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i).  A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  

Any communication from or action by a Veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim.  38 C.F.R. § 3.155.  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).  

The current December 19, 2008 effective date for the grant of service connection for TBI residuals was assigned as it was the date the RO determined the claim was received.  On December 19, 2008, VA received a VA Form 21-4138 (Statement in Support of Claim) from the Veteran's representative requesting service connection for trauma injuries to the head.  After review of the evidence of record, the Board finds that an October 2008 statement from the Veteran serves as an earlier claim for service connection for residuals of a TBI and an earlier effective date of October 17, 2008 is appropriate. 

In a letter dated in October 2008, the Veteran requested that VA transfer his claims file to the local VA office located in Bay Pines, Florida.  Copies of several documents were attached to the request, including a VA Form 21-4138 dated October 14, 2008.  The content of the statement is identical to that received on December 19, 2008; both specifically request service connection for several disabilities, including residuals of a trauma injury to the head.  Although the October 2008 correspondence is not date-stamped by VA, other documents attached to it contain handwritten notes stating "received 1st time 10/17/08" and "copy filed 10/08."  The Board also notes that the December 2008 VA Form 21-4138 filed by the Veteran's representative specifically notes that it was "Resubmitted at Veterans request (sic)."   Thus, the Board will resolve all doubt in the Veteran's favor and find that the statement dated October 14, 2008 was submitted and received by VA on October 17, 2008.  It therefore clearly constitutes an earlier informal claim for entitlement to service connection for residuals of a TBI under 38 C.F.R. § 3.155.  

As noted above, 38 C.F.R. § 3.400 provides that the appropriate effective date for the grant of an original claim for service connection is the date of receipt of the claim or the date entitlement arose, whichever is later.  The Board has determined that an informal claim for service connection was filed on October 17, 2008, and the record establishes that entitlement to the benefit sought arose in September 2008.  At that time, the Veteran was examined for residuals of a TBI at the Bay Pines VAMC, and diagnosed with various conditions related to a head injury incurred in Fort Bragg, North Carolina while setting up an obstacle course.  Service records document the injury in September 2002, when the Veteran fell and sustained a compression fracture of his lumbar spine.  The April 2008 VA TBI evaluation established the presence of a current disability and included competent medical evidence of a link between the Veteran's disability and active duty service.  The September 2009 TBI evaluation therefore establishes the elements necessary for service connection on a direct basis.  The Board finds that the date entitlement to service connection arose for post concussion syndrome due to TBI is September 15, 2008, a month before VA received the Veteran's initial claim for service connection in October 2008.  Therefore, October 17, 2008 is the appropriate effective date for the grant of service connection for post concussion syndrome due to TBI as it is the later of the two dates. 

The Board has considered whether there is any other possible basis for the award of an earlier effective date, but has found none.  The claim for service connection was not received within one year after separation from service.  In addition, while the Veteran complained of headaches in earlier statements to VA dating from April 2004, service connection for this disability was granted in an earlier March 2005 rating decision effective March 5, 2004.  Thus, the record does not establish that a claim for entitlement to service connection for residuals of a TBI was filed prior to October 17, 2007, and the earliest possible effective date for the award of service connection is October 17, 2008, and the claim is granted.


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, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

Given the favorable nature of the Board's decision to reopen the claim for entitlement to service connection for hemorrhoids, the Board concludes that further discussion of the new and material claim-with respect to VA's duties to notify and assist-is not necessary.  

With respect to the claims for increased ratings and an earlier effective date, the Veteran has initiated an appeal regarding the initial evaluations and effective date assigned following an award of service connection.  The claims for service connection for the disability on appeal are now substantiated and the filing of a notice of disagreement (NOD) as to the rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  See 38 C.F.R. § 3.159(b)(3) (2011).  Rather, the Veteran's appeal as to the October 2009 assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  

Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the AOJ must take development or review action it deems proper under applicable regulations and issue a SOC if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD.  However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  38 C.F.R. § 3.159(b)(3).  As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  The December 2011 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes.  The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned.  The SOC also included the relevant criteria for determining the effective date of an award of service connection.  Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating and earlier effective date for the service-connected disabilities at issue.

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records, and records from the Social Security Administration (SSA).  Additionally, the Veteran was provided proper VA examinations to determine the severity of his service-connected PTSD, tinnitus, and hearing loss.

The Board also finds that VA has complied with the April 2009 and September 2011 remand orders of the Board.  In response to the Board's remands, the Veteran was provided a December 2011 SOC addressing the issues of entitlement to increased initial ratings for PTSD, tinnitus, and hearing loss, as well as entitlement to an earlier effective date for the award of service connection for post concussion syndrome due to TBI.  VA treatment records dated after September 2006 and records from the Veteran's private health care providers were also associated with the claims file.  Therefore, VA has complied with the remand orders of the Board.  

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  




ORDER

Entitlement to an initial rating of 70 percent, but not higher, for PTSD is granted.  

Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. 

Entitlement to an initial compensable rating for bilateral hearing loss is denied.

New and material evidence having been received, reopening of the claim for entitlement to service connection for hemorrhoids is granted.

Entitlement to an earlier effective date of October 17, 2008, but not earlier, is granted for the award of service connection for post concussion syndrome due to TBI.


REMAND

The Board finds that additional development is necessary before a decision may be rendered with respect to the other claims on appeal.  Initially, the Board notes that in an October 2008 statement, the Veteran provided a list of all the VA facilities where he had received treatment for his claimed disabilities.  VA has obtained records of treatment from the Boston, West Roxbury, Tampa, Fayetteville, Durham, and Bay Pines VAMCs.  A January 2009 communication from the Chicago VAMC also indicates that they have no records pertaining to the Veteran.  However, the claims file does not indicate that efforts have been made to obtain treatment records from the Winston-Salem Community Based Outpatient Clinic (CBOC), despite the Veteran's reports of receiving treatment at this facility from 2004 to 2005.  The procurement of potentially pertinent VA medical records referenced by the veteran is required.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Remand is also necessary to allow for VA examinations to determine the current severity of the service-connected residuals of a crushed L1 vertebra, residuals of a neck injury, right upper extremity neuropathy, right tennis elbow, and headaches.  The Board's September 2011 remand ordered that the Veteran should be provided VA examinations of these disabilities.  An examination was performed in June 2012, but in August 2012, VA determined that the examination was inadequate for rating purposes.  Additional examinations were scheduled for September 2012, but the Veteran did not appear for the examinations and informed VA that the examinations conflicted with his son's graduation.  He requested that the examinations be rescheduled, but instead the examination requests were cancelled.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App 268 (1998).  The Board clearly ordered that VA examinations should be provided in the September 2011 remand, and to date, adequate examinations have not been performed.  Thus, remand is required.  

With respect to the claim for entitlement to service connection for IBS and the reopened claim for service connection for hemorrhoids, the Board finds that VA examinations are also required under the duty to assist.  VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).  

Service records document treatment for hemorrhoids in April 1995 and several instances of treatment for nausea, vomiting, and diarrhea.  The Veteran has continued to receive treatment for hemorrhoids and GI complaints at various VA facilities and the record contains some medical opinions in support of the claims.  The Veteran's VA primary care physician opined in a June 2008 letter that hemorrhoids were related to neurological deficits associated with the Veteran's service-connected lumbar spine disability.  Also in June 2008, a private physician noted that the Veteran's GI problems could be due to medication used to treat his service-connected lumbar and cervical spine disabilities.  The Veteran's Vet Center therapist also opined that the Veteran's GI problems were due to service-connected PTSD in an August 2008 letter.  As the record contains evidence of current disabilities that may be associated with active service or service-connected conditions, VA examinations to determine the nature and etiology of the claimed disabilities are necessary.  

The Board also finds that a claim for TDIU must be remanded for development.  Entitlement to a TDIU is an element of all claims for a higher initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).   A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106   (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).  

In this case, the Veteran has raised the issue of unemployability.  Although he is currently in receipt of a 100 percent schedular rating for post-concussion syndrome due to TBI, in Bradley v. Peake, 22 Vet. App, 280 (2008), the Court recognized that a separate award of a TDIU predicted on a single disability may for the basis for an award of special monthly compensation (SMC).  Thus, the claim for TDIU is not rendered moot by the assignment of a total schedular rating.  

In statements dated throughout the claims period, the Veteran has contended that he is unable to work due to his service-connected disabilities, and in July 2009 submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).  While the claim for TDIU is part of the Veteran's claims for increased ratings currently on appeal, the RO has not explicitly adjudicated the entitlement to TDIU.  The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO.  See Bernard v. Brown, 4 Vet. App. 384, 394   (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). 

In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work.  38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994).  On remand, the claims file should be provided to a VA examiner with the appropriate expertise to render a medical opinion addressing whether the Veteran is unemployable due to his service-connected disabilities.  

Finally, the Board notes that the September 2011 remand also ordered that the Veteran's vocational rehabilitation file should be added to the claims file.  The record before the Board does not indicate that the Veteran's complete vocational rehabilitation records have been added to the virtual or paper claims file.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain records of treatment from the Winston-Salem CBOC (and/or the parent facility, the Salisbury VAMC) for the period between 2004 and 2005.  All efforts to obtain this evidence must be documented in the record.

2.  Associate the Veteran's complete vocational rehabilitation folder with the virtual or paper claims file.  All efforts to obtain this evidence must be documented in the record. 

3.  Schedule the Veteran for a VA spine examination to determine the current severity of all manifestations of his service-connected lumbar and cervical spine disabilities.  The claims file must be provided to the examiner and reviewed in conjunction with the examination.  

The examination must include range of motion studies of the thoracolumbar and cervical spine.  In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups.  The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar or cervical spine.  The examiner should discuss whether the Veteran's disabilities have resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest in the past 12 months.

The examiner should also identify any evidence of neurological disorders, including neuropathy in the upper and lower extremities due to the service-connected disabilities.  Any sensory or motor impairment in the extremities due to service-connected disabilities should be identified.  The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe.  

The rationale for all opinions expressed should be provided.

4.  Schedule the Veteran for a VA examination to determine the current severity of all manifestations of his service-connected right tennis elbow.  The claims file must be provided to the examiner and reviewed in conjunction with the examination.  

The examination must include range of motion studies of the right elbow.  In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups.  The examiner should further address whether, and if so to what extent, there is ankylosis of the right elbow.  The examiner should also discuss whether the right elbow disability manifests impairment of the flail joint, nonunion of the radius and ulna, impairment of the ulna, impairment of the radius, and/or impairment of supination and pronation.  

The rationale for all opinions expressed should be provided.

5.  Schedule the Veteran for a VA examination to determine the current severity of all manifestations of his service-connected headaches.  The claims file must be provided to the examiner and reviewed in conjunction with the examination.  

The examiner should determine the severity of the Veteran's headaches and determine whether they most nearly approximate:

a)  characteristic prostrating attacks averaging one in 2 months over the last several months; or,

b)  characteristic prostrating attacks occurring on an average once a month over the last several months; or,

c)  very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.  

The rationale for all opinions expressed should also be provided.

6.  Afford the Veteran a VA examination(s) to determine the nature and etiology of the claimed GI and hemorrhoid disabilities.  The claims file must be provided to the examiner and reviewed in conjunction with the examination.  
All tests and studies deemed necessary by the examiner should be performed.  Based on a review of the claims file, including the service treatment records, medical opinions in support of the claims, and the Veteran's own lay history, the examiner is requested to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed GI disabilities and hemorrhoids are etiologically related to any incident of the Veteran's active service, to include the documented in-service treatment for nausea, vomiting, diarrhea, and the April 1995 finding of hemorrhoids.  

The examiner should also provide an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed GI disabilities and hemorrhoids are caused or aggravated by the Veteran's service-connected lumbar or cervical spine disabilities, to include neurological deficits of the lumbar spine and medication used to treat the orthopedic disabilities.  With respect to the claimed GI disability the examiner should address whether the service-connected PTSD has caused or aggravated any GI disability.

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

7.  After completion of the foregoing, provide the claims files to a VA examiner with the appropriate expertise to render a medical opinion addressing the Veteran's ability to work.  All findings should be reported in detail.  

The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities, either singly or taken together, render him unable to secure or follow a substantially gainful occupation.  

The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles.  If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 

8.  Adjudicate the issue of entitlement to TDIU.  If the Veteran does not meet the schedular criteria for a grant of TDIU, determine whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b).

9.  Readjudicate the claims on appeal.  If the benefits sought on appeal are not fully granted, issue a SSOC (to include the issue of entitlement to TDIU if not granted), before returning the case to the Board, if otherwise in order.

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).

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).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs