Citation Nr: 1636887	
Decision Date: 09/21/16    Archive Date: 09/27/16

DOCKET NO.  13-22 085A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD) with depression, anxiety and restless leg syndrome, in excess of 30 percent prior to August 21, 2015, and in excess of 50 percent thereafter.

2. Entitlement to a higher initial rating for tinnitus, to include on an extraschedular basis, currently evaluated as 10 percent disabling.

3. Entitlement to service connection for attention deficit hyperactivity disorder (ADHD).

4. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Lewis Fichera, Attorney


ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel


INTRODUCTION

The Veteran had active duty service in the U.S. Navy from March 2003 to July 2010.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. 

The issues of entitlement to higher initial ratings for PTSD and tinnitus, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's psychiatric functioning is presumed to have been in sound condition at service entry.

2. Clear and unmistakable evidence does not reflect that ADHD preexisted service.

3. The Veteran's current ADHD is related to the ADHD incurred in service.


CONCLUSIONS OF LAW

1. The presumption of soundness with regard to the Veteran psychiatric functioning has not been rebutted.  38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304 (2015).

2. ADHD was incurred in service.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a veteran must show: "(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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Every veteran is presumed sound upon entry into service, except for defects, infirmities, or disorders noted at entry.  38 U.S.C.A. § 1111.  When a condition is not noted upon entry into service, VA may rebut the presumption of soundness by clear and unmistakable evidence that the injury or disease manifested in service was both preexisting and not aggravated by service.  Id.  The United States Court of Appeals for Veterans Claims (Court) has, however, emphasized that the presumption is not for application unless there is evidence that the disorder for which service connection is being claimed arose in service.  Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service").  This predicate condition has been met in this case.  No psychiatric defects were noted on the January 2003 entrance examination.  Service treatment records dated from June 2004 and September 2009 indicate diagnoses and treatment for ADHD; the July 2010 separation examination includes ADHD among the summary of defects.  The Veteran's psychiatric functioning is thus presumed to have been sound when he entered service in 2003.

There is no clear and unmistakable evidence that ADHD preexisted service.  Although at a June 2011 VA examination, the Veteran reported experiencing some difficulties with attention since childhood, he noted that he had not been diagnosed with ADHD until active duty.  Given that only clear and unmistakable evidence of preexistence can satisfy the first prong for rebutting the presumption of soundness, the Veteran's lay reports of certain symptoms associated with ADHD prior to service do not meet this standard.  Again, the June 2004 and September 2009 service treatment records noted above indicate diagnoses and treatment for ADHD.  
The presumption of soundness has therefore not been rebutted, and in service incurrence has been established.  See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (in cases where the presumption of soundness cannot be rebutted, the claim is one based on service incurrence).  However, a current disability and a nexus between that disability and the one in service is still required. Gilbert (Daniel R.) v. Shinseki, 26 Vet.App. 48 (2012) (per curiam) (the presumption of soundness relates to the "in-service incurrence or aggravation" element necessary to establish service connection as distinct from the "nexus" element and the legal standard for rebutting the presumption of soundness (clear and unmistakable evidence standard) and the standard for establishing a nexus between an in-service injury and a current disability (preponderance of the evidence standard) are different.).

To the extent it may be argued, as the RO appeared to conclude in an August 2011 rating decision, that the Veteran's ADHD is a mental deficiency or personality disorder and therefore not subject to service connection, the Board disagrees.  While it is indeed true that "[c]ongenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not disease or injuries within the meaning of applicable legislation," 38 C.F.R. § 3.303(c), whether a disorder is disease or defect depends upon whether the condition is capable of improving or deteriorating.  O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014).  If it is, then it is not a defect but rather a disease.  Id.  Disease, including congenital disease, may be service connected.  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009).

In this regard, the June 2011 VA examiner noted that the Veteran's ADHD had improved since he started employing organizational techniques and taking medication; an August 2015 VA examiner noted that the Veteran's limited attention span had declined over the past few years; and a January 2016 letter from one the Veteran's treating providers at VA indicates that while the prognosis for his current mental health issues was guarded, "with continued treatment [the disorders, including ADHD,] may improve over time."  The Board finds this sufficient to conclude that, in this case, the Veteran's ADHD is capable of improving or deteriorating over time and therefore is not a defect.  O'Bryan, 771 F.3d at 1380.

To the extent it may be further argued that the Veteran's ADHD is congenital and therefore "by its very nature, preexisted the claimant's military service," service connection in such cases may still be established where "manifestations of the disease in service constituted 'aggravation' of the condition."  VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (Oct. 30, 1990).  As discussed above, the Board has already determined that the Veteran has met the requirements for establishing service connection on an incurrence basis.  However, even assuming that his ADHD were a congenital disease, there appears to be sufficient evidence of aggravation.  A review of his personnel records shows that while a June 2007 performance evaluation described him as a "very capable and talented cook who required little to no assistance in preparing meals for the crew," by June 2009, his supervisor described him as an "average performer" requiring "near constant supervision [who] is often required to perform tasks twice to do them correctly [and] routinely diverts from duties for personal matters [but] has the knowledge and skills to succeed if he applies greater focus to job expectations and responsibility." Thus, to re-iterate, the Board finds that the Veteran was in sound condition upon entry into service, and his ADHD had its onset in service.

Turning to the current disability and nexus elements, the June 2011 examiner confirmed that the Veteran has a current diagnosis of ADHD, and numerous post-service treatment records, show continued treatment for ADHD since service. Thus, in light of the above, the Board finds that entitlement to service connection for ADHD is warranted.


ORDER

Entitlement to service connection for ADHD is granted.


REMAND

As to the remaining claims, there appear to be outstanding and pertinent records that need to be obtained.  In a May 2016 statement, the Veteran reported, "I was on New Jersey state unemployment compensation[,] you should have documentation of this as I provided this in the past."  While an application for Social Security Administration disability benefits was associated with the claims file in July 2015, those records show that in October 2012, the Veteran submitted his application to an office in New Jersey but was never awarded benefits.  To the extent there are outstanding state unemployment benefits that may be relevant to the Veteran's claims, he should be provided with an opportunity to submit those records.

In addition, in an April 2016 letter, the representative claimed that the Veteran underwent a VA PTSD examination in February 2016 but that those records had not been considered by the AOJ.  The Board's review of the claims file is negative or any such records.  Similarly, in December 2015 correspondence, the Veteran indicated that he had received treatment through Atlantic County Community Based Outpatient Clinic (associated with the Wilmington VA Medical Center), in Northfield, Jew Jersey, beginning in 2010; through the VA Ventnor Vet Center in Ventnor, Jew Jersey, beginning in 2010; and through the VA Medical Center in Philadelphia, Pennsylvania, beginning in 2012.  While there appear to be Ventnor Vet Center records dated from July 2010 to March 2012 and treatment records associated with the Wilmington VA Medical Center dated from August 2010 to October 2015, to the extent any outstanding VA treatment records remain, to include any VA PTSD examination dated from February 2016, these records should be associated with the claims file.

Finally, as the AOJ's implementation of the Board's decision granting service connection for ADHD and the outcome of the remands of the issue of entitlement to a higher initial rating for PTSD with depression, anxiety and restless leg syndrome may impact the decision on the issue of entitlement to a TDIU, remand of the TDIU issue is warranted as well.  See Parker v. Brown, 7 Vet. App. 116, 118-19 (1994) (stating that two issues are inextricably intertwined when they are so closely tied together where development of one could have a "significant impact" on the other).

Accordingly, the case is REMANDED for the following action:

1. Send to the Veteran and his representative a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any relevant medical records, including any records associated with any application and/or award for New Jersey state unemployment and/or disability benefits.

2. Obtain any outstanding treatment records associated with the Wilmington VA Medical Center, VA Ventnor Vet Center in Ventnor, Jew Jersey, and the VA Medical Center in Philadelphia, Pennsylvania, to include any VA PTSD examination dated from February 2016.

3. After completion of the above, the RO should determine if any additional development is warranted, and if so, such development should be completed. 

4. After completion of the above, readjudicate the claims, to include TDIU.  If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.

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 2014).





______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs