Citation Nr: 1538695	
Decision Date: 09/10/15    Archive Date: 09/18/15

DOCKET NO.  13-15 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for an adverse reaction to the medication Chantix.

2. Entitlement to an initial disability rating in excess of 30 percent for extreme anxiety disorder.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Delhauer, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1975 to February 1978, from July 2003 to June 2004, and from November 2006 to June 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran was scheduled to appear for a hearing before a member of the Board at the Waco RO in March 2015.  In a February 2015 statement, the Veteran's representative stated the Veteran wished to cancel his hearing before the Board, and did not wish to reschedule the hearing.  Accordingly, the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.702(d) (2015).

This is a paperless file located on the Veterans Benefits Management System.  The Virtual VA paperless claims processing system contains the Veteran's records from the Social Security Administration (SSA), and VA treatment records from the Central Texas VA Healthcare System dated July 2004 to December 2012; other documents are duplicative of the evidence of record, or are not relevant to the issues currently before the Board.

The issues of entitlement to an initial disability rating in excess of 30 percent for extreme anxiety disorder and entitlement to a total disability rating based on individual unemployability (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


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FINDING OF FACT

The evidence of record is against a finding that the Veteran has a current manifestation of an adverse reaction to the medication Chantix which is not already evaluated as a manifestation of his service-connected extreme anxiety disorder.


CONCLUSION OF LAW

The criteria for entitlement to service connection for an adverse reaction to the medication Chantix have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 

      Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of: (1) any information and medical or lay evidence that is necessary to substantiate the claim; (2) what portion of the information and evidence VA will obtain; and (3) what portion of the information and evidence the claimant is to provide.  

The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre-adjudication VCAA notice by letter dated in July 2009.  The Veteran was notified of the evidence needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims.

      Duty to Assist

VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim.  The Veteran's service treatment records, lay statements, SSA records, and VA treatment records have been associated with the claims file.  The Veteran has not indicated that any private treatment reports relevant to his claim of service connection for an adverse reaction to Chantix currently exist.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i).  The Veteran was afforded a VA psychological examination in May 2010.  The examiner considered the Veteran's reports regarding being prescribed Chantix during active duty service, his symptoms after taking Chantix, and conducted a mental status examination.  Based on the foregoing, the May 2010 examiner provided an opinion regarding the existence of any current adverse effects from having taken Chantix.  As will be discussed in more detail below, the Veteran has not alleged, and the evidence of record does not indicate, any potential effects from the Veteran's Chantix use other than psychological symptoms.  Given the foregoing, the Board finds the May 2010 examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection of an adverse reaction to Chantix.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

Thus, with respect to the Veteran's claim, there is no additional development that needs to be undertaken or evidence that needs to be obtained.

Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. §§ 1110, 1131.  

Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54).

Analysis

The Board has thoroughly reviewed all the evidence.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Veteran contends that he was prescribed the medication Chantix during active duty service to help with smoking cessation, but that after returning home and taking the medication for about a month, the Veteran experienced an adverse reaction to the medication.  See, e.g., June 2009 claim.  The Veteran's service treatment records confirm that in April 2008, the Veteran was prescribed a Chantix starter pack to help him quit smoking.  See April 2009 Readiness Processing Center treatment record.  

In his June 2009 claim, the Veteran contended that as a result of his use of the Chantix medication, he began to experience extreme anger, which could break out at any time, and which got physical and damaged the intimacy of his relationship with his wife.  See also September 2009 Veteran statement.  In his September 2009 notice of disagreement, the Veteran stated that he did not suffer with any type of anxiety issues until after taking Chantix.  In his May 2013 substantive appeal, the Veteran contended that he now suffers from an anxiety disorder since taking Chantix.  The Veteran stated that his disorder is in direct correlation with what the manufacturer now lists as possible side effects from the medication, to include changes in behavior, hostility, agitation, depressed mood, and suicidal thoughts or actions.  The Veteran stated that after taking Chantix, his side effects were "off the charts," and included explosive anger which could be classified as intermittent explosive disorder, and periods with no recollection of events, his behavior, or how angry he had been during these periods.  The Veteran further stated that he suffered from disruption of thought, anger, anxiety, and memory failure, and that these symptoms further manifested after he stopped using Chantix.

The Veteran's VA treatment records indicate that he first sought treatment for psychological symptoms including anxiety, panic, hyper-alertness, anger/rage/hostility, changes in sleep, and fleeting homicidal ideation in August 2008.  See August 2008 initial psychosocial assessment.  In June 2009, the Veteran reported to his treating VA psychiatrist that he developed bouts of anger initially after being treated with Chantix, and that he continued to notice irritability.  In a March 2010 mental health treatment note, the Veteran reported that he believes the Chantix he took had a lot of adverse effects on him.  The Veteran discussed symptoms including a variable mood and anxiety.

The Veteran was afforded a VA psychological examination in May 2010.  Upon examination, the Veteran reported that taking Chantix increased his irritability, and that he believes his emotions have been permanently changed due to his use of Chantix.  

In the September 2009 rating decision, service connection was granted for the Veteran's extreme anxiety disorder, based on the determination that the Veteran suffered from anxiety prior to service at a noncompensable level, but that the anxiety disorder was permanently worsened as a result of the Veteran's active duty service.  A 30 percent disability rating was assigned; the Veteran's claim for an increased initial disability rating is discussed in the remand section, below.

The Board finds that all of the adverse reactions the Veteran contends may be adverse effects related to his use of the medication Chantix are already evaluated as manifestations of his service-connected extreme anxiety disorder.  When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission.  38 C.F.R. § 4.126.  

The Veteran and the evidence of record, as outlined above, only indicate psychological symptoms as potential manifestations of an adverse reaction to Chantix: anger, irritability, anxiety, changes in behavior, hostility, agitation, depressed mood, suicidal and homicidal thoughts or actions, disruption of thought, memory loss, panic, hyper-alertness, and changes in sleep.  Such symptoms are all contemplated under the schedule of ratings for mental disorders under 38 C.F.R. § 4.130.  Further, the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings; VA considers the effects of all psychological symptoms on the Veteran's occupational and social functioning when rating his service-connected extreme anxiety disorder.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

As all of the Veteran's psychological symptoms are already contemplated as manifestations of his service-connected extreme anxiety disorder, even if they were determined to have been caused by the Veteran's use of the medication Chantix, the Veteran is already in receipt of VA disability compensation for those psychological symptoms, and they would not be subject to a separate disability rating.  See 38 C.F.R. § 4.14.  Therefore, a distinct current disability subject to possible service connection is not shown by the evidence of record.    

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In this case, the Veteran does not contend that he suffers any adverse effects from his use of Chantix other than the psychological symptoms discussed above, and the evidence of record does not indicate any other potential effects or disabilities.  Therefore, without a current diagnosis of a distinct adverse effect from the medication Chantix, service connection is not warranted.

The weight of the evidence is against the Veteran's claims, and the benefit of the doubt provision does not apply.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for an adverse reaction to the medication Chantix is not warranted.


ORDER

Entitlement to service connection for an adverse reaction to the medication Chantix is denied.


REMAND

The Veteran's VA treatment records associated with the evidentiary record indicate that Veteran last received VA treatment regarding his service-connected acquired psychiatric disorder in May 2010.  See May 2010 VA psychiatry tele-mental health note.  However, in a February 2015 statement, the Veteran's representative cited to a 2013 VA psychological assessment of the Veteran regarding his anxiety disorder.  On remand, the AOJ should obtain all outstanding VA treatment records.

Upon VA examination in May 2010, the Veteran reported feeling sad less than 10 percent of the time.  Upon the Veteran's last VA examination in August 2010, the Veteran complained of anxiety, panic attacks, irritability, hypervigilence, sleep problems, and conflicts with others; the Veteran did not endorse depressive symptoms.  In his May 2013 substantive appeal, the Veteran reported that some days turn "into a slump of depression and inaction," and some days he feels like he has "a complete case of hopelessness."  The Veteran concluded, "At least I can still fight off the feeling of complete hopelessness and wish not to act!" The Board finds this statement may indicate the Veteran is suffering with some degree of suicidal ideation, although not an intent to harm himself.  Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).  On remand, the AOJ should afford the Veteran a new VA examination to determine the current severity and manifestations of his extreme anxiety disorder.

The Veteran's claim for TDIU is inextricably intertwined with the remanded claim for an increased disability rating for extreme anxiety disorder.  See, e.g., February 2015 representative statement (Veteran contends his extreme anxiety disorder renders him unemployable); April 2010 SSA disability determination (secondary diagnosis of anxiety related disorders).  Accordingly, the Board will defer decision on the matter.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding that two or more issues are inextricably intertwined if one claim could have significant impact on the other).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should ask the Veteran to identify any private treatment related to his extreme anxiety disorder.  The AOJ should undertake appropriate development to obtain any outstanding private treatment records.  The Veteran's assistance should be requested as needed.  All obtained records should be associated with the evidentiary record.

The AOJ must perform all necessary follow-up indicated.  If the records are not available, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own.

2. The AOJ should obtain all outstanding VA treatment records dated from December 2012 to the present.  All obtained records should be associated with the evidentiary record.

3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity and manifestations of his service-connected extreme anxiety disorder.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place.

After reviewing the record, interviewing the Veteran, and performing all necessary tests and studies, the examiner is asked to ascertain the severity and all current manifestations of the Veteran's service-connected extreme anxiety disorder.  The examiner should provide an opinion concerning the current degree of social and occupational impairment resulting from the service-connected extreme anxiety disorder.

For the purposes of the opinion being sought, the VA examiner should address the Veteran's report in his May 2013 substantive appeal that he now suffers from depression, inaction, and hopelessness, and the indication he may suffer from some degree of suicidal ideation.

The complete rationale for all opinions should be set forth.  The examiner is advised that the Veteran is competent to report his symptoms and history.  Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

4. After the above development has been completed, adjudicate the claims.  The AOJ should specifically consider whether referral is warranted for consideration of the Veteran's TDIU claim on an extraschedular basis.  If either benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board.

The Veteran 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 2014).



______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs