Citation Nr: 1333923	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  09-24 991	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a heart condition.

2.  Entitlement to service connection for memory loss.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, not otherwise specified (NOS), and dysthymia.

4.  Entitlement to service connection for lipoma, previously claimed as body tumors.

5.  Entitlement to a compensable initial disability rating for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran served on active duty from March 1988 through November 1994, and from October 2004 through December 2005, to include service in Iraq from December 2004 through November 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for hearing loss, effective August 22, 2007 with a noncompensable initial disability rating, and denied service connection for a heart condition, memory loss, PTSD, and body tumors.  In a timely July 2008 Notice of Disagreement (NOD), the Veteran expressed disagreement with the initial disability rating assigned for bilateral hearing loss and the aforementioned denials of service connection.  After a Statement of the Case (SOC) was issued in June 2009, the Veteran perfected his appeal in July 2009, via VA Form 9 substantive appeal.

This appeal also initially included the issues of entitlement to service connection for back and neck disabilities.  These claims were granted in a June 2013 rating decision.  The Veteran has not asserted disagreement with the assigned initial disability ratings for those disabilities, nor has he challenged the effective dates for service connection or his neck and back disabilities.  Accordingly, those issues do not remain on appeal before the Board.

The issues of entitlement to service connection for memory loss and to service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder, NOS, and dysthymia 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 had a lipoma in his left upper shoulder during his active duty service, and currently, has lipomas in the base of his neck, upper arm, and abdomen.

2.  On balance, the evidence is in relative equipoise as to whether the Veteran's current lipomas are etiologically related to the lipoma that he had during service.

3.  The Veteran's bilateral hearing loss has been manifested, at worst, by Level IV hearing loss in his right ear and Level II hearing loss in his left ear.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a lipoma, previously claimed as body tumors, have been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for a compensable disability rating for bilateral hearing loss have not been met or approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.85 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Such notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In relation to the Veteran's entitlement to service connection for a lipoma, previously claimed as body tumors, the Board has considered whether VA has fulfilled the notification and assistance requirements outlined above.  Nevertheless, given the favorable action taken below as to that issue, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time.  Indeed, any such action would result only in delay.

With regard to the Veteran's entitlement to a higher initial disability rating for bilateral hearing loss, a pre-rating letter mailed to the Veteran in August 2007 notified him of the information and evidence needed to substantiate his claim for service connection for bilateral hearing loss.  Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected.  After affording the Veteran reasonable opportunity to respond, his service connection claim was adjudicated in the RO's April 2008 rating decision.  Thus, because the VCAA notice that was provided was legally sufficient, VA's duty to notify has been satisfied.

The August 2007 notification would also apply to the "downstream" issue of entitlement to a higher initial disability ratings for that disability.  The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated.  In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran.  Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491.  Thus, because the VCAA notice concerning the issues of service connection for bilateral hearing loss was legally sufficient, VA's duty to notify as to the issue of entitlement to a higher initial disability rating for that disability has been satisfied.

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  His service treatment records, VA treatment records, claims submissions, lay statements, and arguments from his representative have been associated with the record.  VA examinations to assess the severity of his hearing loss were performed in April 2008 and January 2013.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

II.  Service Connection for Lipoma, Previously Claimed as Body Tumors

In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation.  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In support of his claim, the Veteran has alleged that he began experiencing "body tumors" during service, three months after arriving in Iraq.  In his July 2008 NOD, he specified that he experienced a lipoma in his left shoulder during service and that current "tumors" in his body stemmed from that in-service condition.  

Consistent with the Veteran's assertions, service treatment records show that the Veteran was treated during service in January 2005 for a scapular mass on the left posterior shoulder that had been reportedly present for the past month.  In February 2005, an MRI indicated that the mass was an intramuscular lipoma.  Later that month, the Veteran underwent surgery to have the lipoma excised.  A biopsy confirmed that the mass was a lipoma. 

Following his separation from service, in August 2007, the Veteran was seen for
masses in his neck that had reportedly been present for the last four or five months.  An examination revealed a 7.5 centimeter x 4.5 centimeter soft tissue mass on the posterior cervical area and 10.5 centimeter x 5 centimeter swelling at the base of the neck.

During an April 2008 VA examination, the Veteran reported an area of swelling at the back of his neck which was gradually getting larger and was causing discomfort and a pressure-like sensation.   He also reported other small lumps on the back of his right upper arm and right abdominal wall.  Physical examination revealed a small lump over the lower part of the posterior neck, measuring 5 centimeters long and 3 centimeters wide; a small lump measuring 1 centimeter by 1 centimeter on the back of the right upper arm; and another small subcutaneous lump over the right abdominal wall.  The examiner diagnosed lipomas, however, did not provide an opinion as to whether these lipomas were the same condition as that treated during the Veteran's active duty service.

The evidence shows that the Veteran first experienced a lipoma in his posterior left shoulder during his active duty service, and, that he continues to have lipomas in various areas of his body, including his neck, which is in the same proximate location as the initial lipoma that was treated during service.  Given the apparent chronicity of the Veteran's lipoma, and the fact that the Veteran's current lipoma involves the same proximate location as that affected by the Veteran's lipomas during service, the Board finds that the evidence is in relative equipoise as to whether the Veteran's current lipomas are related to the lipomas he experienced during service.  The Board resolves reasonable doubt as to that question in the Veteran's favor.

The Veteran is entitled to service connection for lipomas, previously claimed as body tumors.  To that extent, this appeal is granted.

III.  Initial Disability Rating for Hearing Loss

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999).

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. §§ 3.102, 4.3.  Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim.  If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed.  38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55.

In his claims submissions, the Veteran generally alleges that he is entitled to a compensable disability rating for his service-connected bilateral hearing loss.  In his July 2008 NOD, the Veteran asserted that he was separated from the National Guard because of his poor hearing.

In cases where the disability rating for hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (performed via the Maryland CNC Test) and a pure tone audiometry test.  Examinations are conducted without the use of hearing aids.  38 C.F.R. § 4.85(a).

In rating disabilities due to hearing impairment, VA must first determine the Roman numerical designation for hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average.  38 C.F.R. § 4.85.  In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85(h), Table VI.

Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz.  The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four.  The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing.  The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination.  For example, if audiometric testing shows an average pure tone threshold of 60 in the right ear and Maryland CNC testing shows the percentage of discrimination of 70 in the right ear, the numeric designation level is "V" for one ear.  In the example, the same procedure would be followed for the left ear.  38 C.F.R. § 4.85(b).

Alternatively, in instances where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85(h), Table VIa.  Pursuant to 38 C.F.R. § 4.86, an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz ; or, (2) a pure tone threshold at 30 decibels or less at 1000 Hertz  and 70 decibels or greater at 2000 Hertz.  In such exceptional cases, Table VIa provides for a Roman numerical designation that simply corresponds to the calculated pure tone threshold average for each ear.  Here, the evidence does not show that the Veteran has had an exceptional pattern of hearing loss.  Accordingly, the Roman numerical designations for the Veteran's hearing loss will be determined exclusively by application of Table VI.

After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85(h), Table VII.  Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear).  For example, if the poorer ear has a Roman numerical designation of "VII" while the better ear has a numeric designation level of "V," the assigned disability rating is 30 percent.  38 C.F.R. § 4.85(e).

The relevant evidence includes an April 2008 VA examination, during which the Veteran reported ongoing hearing loss and tinnitus.  Audiometric testing revealed the following pure tone thresholds:



HERTZ



1000
2000
3000
4000
RIGHT
25
25
65
90
LEFT
20
10
55
60

Based upon the foregoing audiometric results, the pure tone threshold averages were 51 decibels in the right ear and 36 decibels in the left ear.  Speech discrimination testing performed via the Maryland CNC word list test revealed speech recognition abilities of 80 percent in the right ear and 84 percent in the left ear.

Under Table VI, the hearing loss demonstrated by the Veteran during the April 2008 VA examination equates to Level IV hearing loss in his right ear and Level II hearing loss in his left ear.  Having ascertained the Roman numerical designation for hearing loss in each ear, the appropriate disability rating is ascertained by application of the Roman numerical designations to 38 C.F.R. § 4.85(h), Table VII. Application of Table VII to the hearing loss shown during the April 2008 VA examination reveals that the Veteran is entitled to a noncompensable disability rating.

During a January 2013 VA examination, the Veteran reported that he was experiencing difficulty understanding speech.  Based upon this, the examiner opined that the Veteran's hearing loss did impact his activities of daily living and occupational functioning.  The Board notes, however, that the Veteran reportedly remained employed as an emergency medical technician.  Audiometric testing performed at that time revealed the following pure tone thresholds:



HERTZ



1000
2000
3000
4000
RIGHT
25
25
55
85
LEFT
15
10
55
55

Based upon the foregoing audiometric results, the pure tone threshold averages were 48 decibels in the right ear and 34 decibels in the left ear.  Speech discrimination testing performed via the Maryland CNC word list test revealed speech recognition abilities of 92 percent in the right ear and 96 percent in the left ear.

Under Table VI, the hearing loss demonstrated by the Veteran during the January 2013 VA examination equates to Level I hearing loss in both ears.  Application of Table VII reveals that the Veteran remained entitled to a noncompensable disability rating.

Although mindful of the difficulties that the Veteran experiences as a result of his bilateral hearing loss, the Board wishes to note that "disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered."  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  In the absence of contrary audiometric evidence, the "mechanical application" of the diagnostic criteria to the evidence at hand clearly establishes that the Veteran is not entitled to a compensable initial disability rating for bilateral hearing loss.

Subject to the above, the Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  In that regard, the January 2013 VA examiner noted the Veteran's complaint that he was having problems understanding speech and concluded that the Veteran's hearing loss did impact his activities of daily living and occupational functioning.  The Board concludes that the VA examination reports are adequate for the purpose of rendering a decision in the instant appeal.

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hearing loss disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's hearing loss disability with the established criteria shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. 

In this regard, the Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).

Therefore, the Veteran's difficulties caused by his hearing loss disability are contemplated in the regulations and rating criteria as defined.  The mere fact that the Veteran's hearing disability does not satisfy the numerical criteria for a compensable rating under these criteria, to include the criteria specifically designed for the type of real-world impairment experienced by the Veteran, does not place his symptomatology outside of that contemplated by the rating schedule or make application of the rating schedule impracticable in this case.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

To conclude, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.  For this reason, and as the evidence does not support the assignment of a compensable initial disability rating for bilateral hearing loss.  To that extent, this appeal is denied.  38 C.F.R. §§ 4.3, 4.7.


ORDER

Entitlement to service connection for lipoma, previously claimed as body tumors, is granted.

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


REMAND

In relation to the Veteran's claim for service connection for a heart condition, the Veteran alleged in his substantive appeal that he experienced "abnormal heart beeps" during his active duty service.  He also alleged that he had a heart attack shortly after his separation from active duty.  Indeed, service treatment records show that the Veteran was evaluated for heart murmurs in January 1991 and May 1992.  Post-service treatment records dated May 2006, from Gadsden Regional Medical Center, show that the Veteran was evaluated and treated for atypical chest pain and pressure.  Although these records indicate that a myocardial infarction was ruled out, it is unclear from the record as to whether a specific diagnosis was made in relation to the reported chest pain and pressure.

The foregoing evidence suggests the possibility that the Veteran had a heart condition during service and that the Veteran has experienced post-service cardiac symptoms which may be indicative of a current heart disorder.  Despite the same, the Veteran has not yet been afforded a VA examination to assess the nature and etiology of any current heart disorder.  The Veteran should be arranged to undergo such an examination.  38 C.F.R. § 3.159(c)(4).

Regarding the issue of the Veteran's entitlement to service connection for an acquired psychiatric disorder, service treatment records dated May and October of 2005 reflect ongoing in-service psychiatric treatment for symptoms which included depression, anhedonia, difficulty falling asleep, awakening in the middle of the night, difficulty functioning at work, stress, depression, feelings of hopelessness, feelings of being emotionally detached, and apathy.  A November 2005 Post-Deployment Health Assessment that was apparently completed by the Veteran shortly after his return from service in Iraq reflects reported symptoms of having little interest or pleasure in doing things, and feeling down, depressed, or hopeless.  Post-service VA treatment records reflect repeated positive PTSD screens and varying diagnoses of PTSD, anxiety disorder, NOS, and dysthymia.  A VA examination performed in May 2012 confirmed the diagnosis of anxiety disorder, NOS; however, no opinion was given as to whether the diagnosed disorder was related to the Veteran's active duty service.  In view of the foregoing evidence, and in the absence of such an opinion, the May 2012 VA examination is incomplete.  Accordingly, the Veteran should be arranged to undergo a new VA examination to determine whether the Veteran's anxiety disorder, and/or any other diagnosed acquired psychiatric disorder, is related to the Veteran's active duty service.  38 C.F.R. § 3.159(c)(4).

Regarding the issue of entitlement to service connection for memory loss, the Veteran has alleged in his July 2008 NOD that he began experiencing memory loss during service in Iraq.  Post-service VA treatment records and the May 2012 VA examination report reflect that the Veteran reported impaired memory as a symptom associated with his claimed acquired psychiatric disorder.  Accordingly, to the extent that the Veteran's memory loss is shown as being a manifestation of his a claimed acquired psychiatric disorder, the Board admonishes that the assignment of separate disability ratings for the same manifestation under different diagnoses constitutes "pyramiding," which is forbidden under the federal regulations.  38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet App 259 (1994) (noting that the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, as such a result would overcompensate the claimant for the actual impairment of his earning capacity).

Subject to the foregoing, the Board notes that an April 2007 VA treatment record reflects that during a traumatic brain injury screening, the Veteran reported that he was involved in IED, land mine, and grenade blasts during his active duty service.  Indeed, the Board notes that such incidents are consistent with the Veteran's documented service in Iraq.  38 C.F.R. § 1154(b).  During the screening, the Veteran reported various symptoms which included memory lapses.  The screening was determined as being positive for traumatic brain injury.  The Board notes, however, that no follow-up evaluations or studies were performed for a possible brain injury.

The Veteran's general assertions of memory loss and April 2007 positive traumatic brain injury screen suggests the plausible theory that the Veteran's memory loss resulted from a traumatic brain injury that was sustained during the Veteran's active duty service.  VA has a duty to consider a claim under all theories of entitlement.  VA must fully and sympathetically develop a veteran's claim to its optimum, which requires VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations.  Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).  Mindful of the same, the Board finds that the Veteran should be afforded a VA examination to examine whether the Veteran has a traumatic brain injury, and if so, all of its manifestations, to include memory loss.  38 C.F.R. § 3.159(c)(4).

Prior to arranging the examinations ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other treatment providers who have rendered psychiatric treatment or treatment for his heart or memory loss since April 2013.  VA must then make efforts to obtain any treatment records that are identified by the Veteran.  38 C.F.R. § 3.159.

Accordingly, the case is REMANDED for the following action:

1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103  and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for a heart condition, memory loss, and an acquired psychiatric disorder, to include PTSD, anxiety disorder, NOS, and dysthymia.  This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. 

The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his claimed disabilities.  The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claims.

The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided psychiatric treatment or treatment of his heart or memory loss since April 2013.

2.  Make efforts to obtain the records for any post-service treatment identified by the Veteran.  Any records obtained as a result of such efforts should be associated with the claims file.  If such efforts yield negative results, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review.

3.  After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination with an appropriate examiner to determine the nature and etiology of his claimed heart condition.

The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.  All appropriate tests and studies should be performed in a manner that is in accordance with the applicable regulations.

Upon review of the record and examination of the Veteran, the examiner should provide a diagnosis relevant to the Veteran's claimed heart condition, and, an opinion as to whether it is at least as likely as not (is at least a 50 percent probability) that any diagnosed heart condition is etiologically related to the heart murmurs experienced by the Veteran during his active duty service or to any other injury or illness sustained during his active duty service.

Any and all opinions must be accompanied by a complete rationale which includes a discussion and explanation as to all complaints, findings, medical history, and other evidence which supports the examiner's diagnoses and other conclusions.  If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

4.  The Veteran should also be afforded a VA psychiatric examination to determine the nature and etiology of his claimed psychiatric disorders.  The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. 

All tests and studies deemed necessary by the examiner must be performed.  Based on a review of the claims file and the clinical findings of the examination, the VA examining psychiatrist is requested to provide a multi-axis diagnosis for the Veteran, including Axis I diagnoses of any psychiatric disorders.  In expressing the diagnosis(es), the examiner should state with specificity how the Veteran's current and previous symptomatology, as reported by the Veteran and noted in the other evidence in the claims file, meets the DSM-IV criteria for each diagnosed psychiatric disorder.  The examiner's explanation should also take into account and address the symptoms, findings, and diagnoses expressed in the Veteran's lay statements and claims submissions; service treatment records; post-service treatment records; and the prior May 2012 VA examination report.

If the examiner finds that the Veteran does not demonstrate a current psychiatric disorder, then the examiner should provide an explanation as to how the Veteran's current and previous symptomatology do not meet the DSM-IV criteria for PTSD, anxiety disorder, NOS, or dysthymia.

If the Veteran is diagnosed with PTSD specifically, the examiner should then offer opinions as to whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran's reported stressors are adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to those reported stressors.

If the Veteran is diagnosed with a psychiatric disorder other than PTSD, then the examiner should specifically offer an opinion as to whether it is at least as likely as not that the diagnosed psychiatric disorder was sustained during service, or, is etiologically related to an injury or illness sustained by the Veteran during his active duty service.

A complete rationale must be given for all opinions and conclusions.  Such rationale must include a discussion of all relevant evidence in the claims file and supporting medical principles, and, must be expressed in a typewritten report.

5.  The Veteran should also be afforded a VA examination, to explore for possible traumatic brain injury and to determine all manifestations and residuals associated with such an injury.

The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination.  All appropriate tests and studies should be performed, to include an interview, cognitive testing, neurologic testing, and a comprehensive mental status examination.  Upon review of the record and examination of the Veteran, the examiner should determine whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a traumatic brain injury, and if so, whether such injury was sustained during service or is otherwise related to an injury or illness during active duty service.

The examiner should set forth all manifestations of the Veteran's traumatic brain injury, and to the extent possible, delineate specifically which symptoms are associated with traumatic brain injury and which symptoms are associated with an acquired psychiatric disorder.

Any and all opinions must be accompanied by a complete rationale.  If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion.

6.  If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility.

7.  After completion of the above development, the issue of entitlement to service connection for a heart condition, memory loss, and an acquired psychiatric disorder, to include PTSD, anxiety disorder, NOS, and dysthymia should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 

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 LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs