Citation Nr: 1328140	
Decision Date: 09/04/13    Archive Date: 09/10/13

DOCKET NO.  09-15 095A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD).

2.  Entitlement to an evaluation in excess of 40 percent for a seizure disorder.

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


REPRESENTATION

Appellant represented by:	Robert W. Gillikin, II, Attorney at Law


ATTORNEY FOR THE BOARD

P. Olson, Counsel

INTRODUCTION

The Veteran had active military service from October 1967 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The issues of entitlement to an increased rating for a seizure disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDING OF FACT

The evidence of record indicates that the Veteran is not currently diagnosed with an acquired psychiatric disorder to include PTSD.


CONCLUSION OF LAW

The Veteran does not have an acquired psychiatric disorder, to include PTSD, that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in July 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  The case was most recent readjudicated in October 2012. 

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order. 

Service Connection

The Veteran seeks service connection for PTSD or other acquired psychiatric disorder that may be present and related to service.  

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012).  38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).

The Board notes that the Veteran filed his original claim for "delayed stress" in January 1988.  In August 1988, the Veteran was diagnosed with "Anxiety Disorder Not Otherwise Specified."  The August 1988 VA examiner noted that the Veteran did not spontaneously describe any PTSD symptoms and that when questioned about PTSD symptoms, he denied any of the defining features of PTSD.

By rating decision dated in November 1988, service connection was established for anxiety neurosis.  In July 1996, service connection was established for a seizure disorder which referenced a VA neurologists report.  It was indicated by the specialist that the symptoms shown in service and thereafter were more consistent with a seizure disorder and not the previously diagnosed anxiety.  A 40 percent rating was assigned.  The record indicates that a May 1996 VA treatment record noted:

I received copies of [the Veteran's] C&P examination dated August 1988 where I found a complete description of p[atien]t's symptoms while in the military and later on.  It appears the symptoms of "funny feeling in stomach?" ... blurry vision, sweating, flushing have been present since the time he was in the military.  ...  It is my opinion that all these symptoms are typical of complex partial seizures and have been constant -- although intensified - over the years.  ...  I am not in a position to ascertain whether he does or does not have an "anxiety neurosis," but I do believe that he has been suffering from epilepsy ever since these symptoms appeared on his way back from Vietnam. 

In this case, the medical evidence of record shows that the Veteran is not currently diagnosed with PTSD or any psychiatric disability.  The Board acknowledges the Veteran's assertions that he has experienced stress; and in fact, there are numerous VA treatment records which note that he has been treated for stress with medication.  However, stress is actually just reported symptomatology.  Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability..."); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd in part sub nom.   Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The CAVC held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.)  

Since the Veteran filed his claim for PTSD in November 2006, there has been no diagnosis of a chronic psychiatric condition.  The Veteran underwent VA examination in September 2012 at which time the examiner opined that the Veteran's symptoms did not meet the DSM-IV diagnostic criteria for PTSD.  The examiner noted: 

This vet does not meet criteria for PTSD or any other mental health disorder.  He seems to be functioning well in numerous areas of his life from a mental health standpoint.  Today his affect was broad and mood was euthymic.  He was in no significant emotional distress.  He appeared at east, even when discussing his time in the military.  Eye contact, speech and behavior were normal.  He denied any suicidal or homicidal ideation.  There are no delusions or hallucinations.  Memory is grossly intact.  There is no OCD.  He denied experiencing panic attacks.

He also denied problems with excessive anxiety, saying he is typically calm, without excessive fear or worry, and is able to feel relaxed.  He denied any problems with depressed mood and is able to enjoy things.  He denied anger and irritability.  Impulse control is good.  He reports sleeping adequately.  While he has no mental health disorder, the vet does report a tendency to hold in his emotions and says he sometimes struggles to effectively communicate negative feelings if he has them.  This is not a mental disorder, but likely his own personality style.

Regarding PTSD, the vet described no episodes of truly traumatic stress incidents and therefore does not meet criterion A.  He also indicated no PTSD symptoms - no horrible war nightmares, no problems with upsetting memories from the past haunting him, etc.  There is no avoidance behavior.  He gets along w[ith] people and gets out in public w[ith] no distress.  He denied hypervigilance or excessive startle.  Concentration is adequate.  ... there are no sleep or irritability/anger problems.

In the absence of competent evidence which suggests that the Veteran's feelings of stress constitute a chronic psychiatric disability, the Board has no basis on which to consider the Veteran's feelings of stress as more than a medical finding or symptom.  The Veteran's own assertions to the contrary do not constitute competent medical evidence in support of his claim.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992).  Absent a showing of a current chronic psychiatric disability which could be related to service, entitlement to service connection for an acquired psychiatric disability, to include PTSD, must be denied.

As the preponderance of the evidence is against the above claims, the benefit of the doubt doctrine is not applicable.  38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied.



REMAND

The Veteran seeks and increased rating for his service-connected seizure disorder as well as entitlement to a TDIU.  His representative argues that his change in medication suggests increased impairment.

VA treatment records indicate that in February 2010, the Veteran reported having seizures regularly.  100 milligrams of carbamazepine was added to the already 400 milligrams of carbamazepine per day for seizures.  Other records, earlier, suggest that the symptoms had been controlled since 2007.

The Veteran underwent VA examination in August 2012 at which time the examiner noted that the Veteran was a vague historian and details were hard to ascertain.  The Veteran reported that seizures were first diagnosed in 1996, came to VAMC and started in seizure medication.  The Veteran denied seeing a neurologist or having an EEG or CT/MRI of the head.  

The examiner noted that the Veteran reported less than two minor seizures over the previous six-month period, no major seizures, and no psychomotor seizures.  SSA records indicate that the Veteran reported seizures lasting five to 30 minutes and length of time between them varying from five minutes to three hours.  

In view of the vast discrepancy between the Veteran's statement to SSA and his statement to the August 2012 VA examiner, it is the Board's opinion that additional development be accomplished.  

With regard to the TDIU, the Board has requested additional development to determine the current severity of the Veteran's seizure disorder.  This pending action may affect his eligibility for a TDIU; and as such, the Board finds that the claim for TDIU is inextricably intertwined with the claim for increased rating of a seizure disorder.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).  

Regulations pertinent to the rating of seizure disorders state that rating specialists must bear in mind that the epileptic, although his or her seizures are controlled, may find employment and rehabilitation difficult of attainment due to employer reluctance to the hiring of the epileptic.  Where a case is encountered with a definite history of unemployment, full and complete development should be undertaken to ascertain whether the epilepsy is the determining factor in the inability to obtain employment.  The assent of the claimant should first be obtained for permission to conduct this economic and social survey.  The purpose of this survey is to secure all the relevant facts and data necessary to permit of a true judgment as to the reason for his unemployment and should include information as to:  (a) Education; (b) Occupations prior and subsequent to service; (c) Places of employment and reasons for termination; (d) Wages received; and (e) Number of seizures.  38 C.F.R. §4.124a, Diagnostic Code 8914, Epilepsy and Employability.  The claims file does not reflect that VA undertook this requisite economic and social survey.  While this case is in remand status, the RO must take appropriate development actions.

Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his seizure disorder that is not evidenced by the current record.  [VA treatment records were last obtained in October 2012.]  If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  These records should then be obtained and associated with the claims folder.  The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue.

2.  The Veteran should be scheduled for an additional VA examination to assess the nature and severity of his service-connected seizure disorder.  The claims folder should be made available to and reviewed by the examiner prior to the examination.  All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.  In accordance with the latest worksheets for rating seizure disorders the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability.  A complete rationale for any opinions expressed must be provided. 

3.  Development should be undertaken to ascertain whether the epilepsy is the determining factor in the inability to obtain employment.  Refer to 38 C.F.R. §4.124a, Diagnostic Code 8914, Epilepsy and Employability.  The Veteran's consent to conduct an economic and social survey should be obtained and the survey should be conducted to secure all the relevant facts and data necessary - to include, but not limited to, the following: (a) Education; (b) Occupations prior and subsequent to service; (c) Places of employment and reasons for termination; (d) Wages received; and (e) Number of seizures.

4.  After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND.  The AMC/RO must ensure that the examiners documented their consideration of Virtual VA, to the extent needed. (Review as of the date of this document reveals not pertinent documents entered therein.)  If any report is deficient in any manner, the RO must implement corrective procedures at once.  

5.  The case should be reviewed on the basis of the additional evidence.  If the benefit sought is not granted in full, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

The appellant has the right to submit additional evidence and argument on the matter or 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).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs