Citation Nr: 1335813 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 12-33 961 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a disability manifested by bilateral hand tremors, to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD. 3. Entitlement to increased disability ratings for PTSD, currently evaluated as 30 percent disabling prior to May 4, 2010, and as 50 percent disabling thereafter. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for residuals of concussion; and if so, whether the criteria for service connection are met. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1954, including service in Korea; and his decorations include the Combat Infantryman Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision that, in pertinent part, denied service connection for a disability manifested by bilateral hand tremors; and denied a disability rating in excess of 30 percent for service-connected PTSD. These matters also come to the Board on appeal from an August 2012 rating decision that, in pertinent part, denied service connection for hypertension. The Veteran timely appealed. In September 2012, the RO increased the disability evaluation to 50 percent for PTSD, effective May 4, 2010. Because higher evaluations are available for PTSD both before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2012, the Veteran withdrew his prior request for a Board hearing, in writing. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased rating includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected PTSD renders him unemployable. Accordingly, in light of the holding in Rice, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. In a September 2013 rating decision, the RO denied the appellant's claim for service connection for cold injury residuals, peripheral neuropathy. The electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran filed a notice of disagreement (NOD) with that determination and that action is pending. As the RO has acknowledged receipt of the NOD, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in this case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for hypertension, to include as secondary to service-connected PTSD; increased ratings for PTSD and a TDIU; and for reopening a claim for service connection for residuals of concussion, 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. FINDING OF FACT The evidence supports a finding that the Veteran's nightmares and flashbacks due to his service-connected PTSD, likely exacerbated a disability manifested by bilateral hand tremors. CONCLUSION OF LAW A disability manifested by bilateral hand tremors is aggravated by the service-connected PTSD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through an October 2010 letter, the RO notified the Veteran of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. VA's letter notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the October 2010 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the outpatient treatment records, and has arranged for VA examinations in connection with the claim decided on appeal, reports of which are of record. The opinions expressed therein are predicated on a review of the history and consideration of the Veteran's complaints and symptoms. Additionally, the National Personnel Records Center (NPRC) has advised VA that the Veteran's service records were fire-related. The only available service treatment record in the claims file consists of a November 1954 medical examination report, conducted at the time of the Veteran's discharge and transfer to the U.S. Army Reserves. The Veteran reportedly does not have any additional service treatment records in his possession, and he has submitted statements to support his claim. The Board finds that VA has fulfilled its duty to assist the Veteran in obtaining service treatment records and searching alternate sources, and further efforts to obtain the missing service records would be futile. Given these facts, the available records have been obtained. Accordingly, the duty to assist has been satisfied. II. Analysis The Veteran asserts that his disability manifested by bilateral hand tremors is secondary to his service-connected PTSD. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439. Here, VA treatment records show an assessment of right hand action tremor of two years' duration in December 2009. Records show that, in April 2011, the tremors had worsened in severity and frequency, and also involved his left hand. In May 2012, a VA physician noted that the Veteran's bilateral hand tremors were associated with PTSD flashbacks and anxiety most of the time. In October 2012, a VA examiner explained that the Veteran's bilateral hand tremors and PTSD were coincidental or co-occurring conditions, but were not related. In this regard, the VA examiner reasoned that PTSD consisted of only psychological symptoms that may follow stressful events or situations; however, PTSD did not cause neurological symptoms. The VA examiner added that the Veteran's bilateral hand tremors were clearly of an organic nature; and that anxiety and other PTSD factors did not alter the frequency or severity of tremors. Tremors may have become more visible, not worse, under any anxiety producing situation. In November 2012, the Veteran reported that his bilateral hand tremors became worse when he had PTSD attacks. The VA physician at the time noted that the Veteran's bilateral hand tremors were worsened by anxiety and by traumatic memories of experiences during the Korean War. Based on this evidence, the VA physician concluded that the Veteran's essential tremor was clearly related to and exacerbated by PTSD. Following examination in December 2012, a VA examiner opined that the Veteran's essential tremor was aggravated beyond its natural progression by PTSD; and indicated that the Veteran's baseline was his normal tremor. In support of the opinion, the examiner referenced medical literature, revealing that tremor may begin at any age and was enhanced by emotional stress. The examiner reasoned that the Veteran did not get enough sleep when having PTSD flashbacks and, hence, worsened his tremors. In an April 2013 addendum, the same VA examiner clarified that the Veteran's bilateral hand tremors were indeed exacerbated during PTSD attacks, but then returned to baseline once the attacks subsided. Based on this evidence, the examiner concluded that the essential tremor was not permanently worsened due to aggravation by PTSD. In essence, there was no sustained worsening of the Veteran's bilateral hand tremors. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, VA examiners have clearly noted an exacerbation of bilateral hand tremors due to anxiety and PTSD. Since 2009, when the baseline was established, the overall evidence reflects that the Veteran's bilateral hand tremors have increased both in severity and frequency; and the bilateral hand tremors have been associated with PTSD flashbacks and anxiety. The most recent examiner in December 2012 found that the Veteran's sleep disturbance due to PTSD flashbacks also worsened his hand tremors. While the opinions of record are afforded significant probative value, most of the examiners did not indicate there was aggravation beyond the baseline level, as required by the regulation for service connection on a secondary basis. 38 C.F.R. § 3.310. In fact, the April 2013 addendum reflects that the bilateral hand tremors returned to baseline after PTSD attacks. However, resolving any doubt in the Veteran's favor, a worsening of the disability, when compared to the 2009 baseline, is shown, based on the frequency and severity of the exacerbations of his tremors which at one point were assessed as severe. See April 2011 VA treatment record. A November 2012 VA treatment record also indicates that the tremor is worsened by anxiety and traumatic memories of experiences in the Korean War. The Veteran has also stated that his bilateral hand tremors worsened when he had PTSD attacks, and reported that he now only slept approximately three-to-four hours nightly because of the nightmares and PTSD flashbacks. Given the nature of the disability, the Veteran's lay statements, the post-service records reflecting both increased severity and frequency of bilateral hand tremors especially at night, and the opinions noted above, the Board finds the overall evidence as to aggravation at least in equipoise, permitting a grant of secondary service connection. See Hodges v. West, 13 Vet. App. 287, as amended (2000). Accordingly, service connection is warranted for a disability manifested by bilateral hand tremors. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107. ORDER Service connection for a disability manifested by bilateral hand tremors, to include as secondary to PTSD, is granted. REMAND 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). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Hypertension The Veteran seeks service connection for hypertension and has asserted that the claimed disability is secondary to his service-connected PTSD. The only available service treatment record is the Veteran's discharge examination from active service in November 1954 showing a normal clinical evaluation. The Veteran's blood pressure reading at the time was 126/76. The post-service treatment records show that the Veteran reported being diagnosed with hypertension approximately in 2001. A VA examiner in August 2011 noted that the Veteran was first treated at VA for hypertension in 2004, and that his treatment records do not show any earlier treatment for hypertension. The VA examiner opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected PTSD. The examiner reasoned that there is no current medically accepted cause and effect relationship between hypertension and PTSD. With regard to the Veteran's claim for secondary service connection, the Board finds that the August 2011 examiner did not provide an opinion regarding whether the Veteran's hypertension is aggravated by the service-connected PTSD. Hence, the Board cannot resolve this matter without further medical clarification. In addition, it is noted that VA treatment records dated in 2004 indicate that the Veteran was going to follow up with his private physician, Dr. Sugahari, concerning hypertension. While some records have been received from this physician, they do not date back to 2004. As the Veteran thinks he was diagnosed with hypertension in 2001, VA and private treatment records dating from 2001 should be obtained. PTSD In evaluating the Veteran's request for increased disability ratings, the Board considers the medical evidence of record. The Veteran contends that the service-connected PTSD is more severe than currently rated, and warrants an increased disability rating. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran was last afforded a VA examination to evaluate the severity of his service-connected PTSD in October 2012. At that time the Veteran admitted being hypervigilant, and that he felt very uncomfortable going places where he might be reminded of his experiences in the Korean War. He felt down because several of his friends have died in recent years. He denied feeling suicidal. His intellect and judgment were not impaired. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and difficulty in adapting to stressful circumstances. The examiner then noted that the Veteran's PTSD was moderately severe in intensity. A global assessment of functioning (GAF) score of 55 was assigned. Since then, the Veteran described a worsening of PTSD symptoms, and stated in June 2013 that he now has "persistent delusions and hallucinations" and is unable to work. Accordingly, the Board finds that the evidence of record is inadequate to properly evaluate the service-connected PTSD; and that a new VA examination, with more contemporaneous medical findings, is needed. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. TDIU Benefits The critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Service connection has been established for PTSD, rated currently as 50 percent disabling; for hearing loss, rated as 10 percent disabling; for tinnitus, rated as 10 percent disabling; and, as shown above, for a disability manifested by bilateral hand tremors, yet to be rated. Where the percentage requirements for TDIU benefits under 38 C.F.R. § 4.16(a) are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Consideration is given to the Veteran's background, including his employment and educational history. Records show that the Veteran is not currently working, and that he had worked for the U.S. Army as a general foreman (civilian) for over 30 years. The evidence is conflicting as to his date of last employment; and the Veteran's level of education, and any continuing training are not indicated. VA has the duty to supplement the record by obtaining an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability). Residuals of Concussion In February 2011, the RO declined to reopen the Veteran's claim for service connection for residuals of concussion, on the basis that new and material evidence had not been submitted. Correspondence submitted by the Veteran and his representative in October 2011 has been accepted by the Board as a notice of disagreement (NOD). Therein, the Veteran noted the denial of reopening and asserted that he did have current symptoms attributable to a concussion. Accordingly, the document is reasonably construed as expressing dissatisfaction with the RO's determination and a desire to contest the result. The RO has not issued a statement of the case for reopening the claim for service connection for residuals of concussion, in response to the NOD. The Board is required to remand the claim for the issuance of such statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). While further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file (physical or electronic), VA treatment records for hypertension and PTSD, dated as follows: a. from 2001 to 2004, and b. from October 2013 to present. 2. Request that the Veteran provide or identify any additional records, not already of record, that are relevant to his claims, including records dating from 2001 from Dr. Sugahari. He should also be advised that he can submit an authorization form so that VA can request the records on his behalf. 3. Provide the Veteran with notice as to how to substantiate his claim for an increased rating on the basis of TDIU. Request that he complete and return a TDIU claim form in order that information concerning his work experience, training and education can be obtained. 4. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. After the above steps are complete, the August 2011 VA examination report should be returned to the examiner (or, if that examiner is unavailable, a suitable substitute) for an addendum identifying any hypertension, and expressing an opinion as to: (a) Whether it at least as likely as not (50 percent probability or more) either had its onset in active service or is otherwise related to active service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected PTSD aggravated (i.e., increased in severity) the hypertension beyond the natural progress. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected PTSD. All opinions and conclusions expressed must be supported by a complete rationale in a report. The Veteran's claims file must be made available to the examiner, and the examination report should note review of the file. 6. Accord the Veteran an appropriate VA examination, for evaluation of the service-connected PTSD and his employability. All appropriate tests should be conducted. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. All pertinent findings shown on evaluation should be noted in the examination report. In addition, the examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the Veteran's PTSD, and an explanation of the meaning of the score. In providing the above-noted findings, the examiner should, to the extent possible, distinguish the symptoms attributable to service-connected PTSD from those of other psychiatric conditions. However, if it is not medically possible to do so, the examiner should clearly so state, and indicate that the findings are with respect to the Veteran's overall psychiatric impairment. The examiner(s) should also provide information concerning the industrial impairment resulting from the service-connected disabilities so that the Board can ascertain whether the Veteran is unable to obtain or retain substantially gainful employment as a result of his service-connected PTSD, hearing loss, tinnitus, and bilateral hand tremors, consistent with the Veteran's education and occupational experience. The examiner(s) should set forth a rationale for the conclusions reached. These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule. It is important that the examiner furnish the requested data. 7. The RO or AMC should issue a SOC with regard to the issue of reopening the Veteran's claim for service connection for residuals of concussion. The Board will further consider the issue only if a timely substantive appeal is received in response to the SOC. 8. After ensuring that the requested actions are completed, re-adjudicate the claims remaining on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs