Citation Nr: 1752348	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  94-33 556	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus and lumbosacral strain.

2.  Entitlement to service connection for hypertension, to include as secondary to service-connected dysthymia or medications taken for service-connected disabilities.

3.  Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbosacral strain and gastroesophageal reflux disease (GERD).

4.  Entitlement to service connection for a dental disability of tooth #7 and a chronic dental condition, to include as secondary to service-connected GERD.

5.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a cervical myofascial pain disorder.

6.  Entitlement to compensation under 38 U.S.C.A. § 1151 for headaches.

7.  Entitlement to compensation under 38 U.S.C.A. § 1151 for blackouts.

8.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a shoulder disorder.

9.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a right leg disorder.

10.  Entitlement to compensation under 38 U.S.C.A. § 1151 for a jaw disorder.

11.  Entitlement to compensation under 38 U.S.C.A. § 1151 for codeine dependence.

12.  Entitlement to compensation under 38 U.S.C.A. § 1151 for an anal sphincter muscle disorder.

13.  Entitlement to an initial rating in excess of 10 percent for dysthymia for the period from April 25, 1990, to January 22, 2009.

14.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). 


WITNESS AT HEARINGS ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Douglas, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from February 1970 to February 1973.  He had additional military reserve service prior to December 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  The Board, in pertinent part, remanded issues on appeal for additional development in February 2001, October 2010, October 2011, and July 2012.  

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in May 2012.  He also testified at video conference hearings before Veterans Law Judges who are no longer employed at the Board in November 2000 and March 2010.  Copies of the transcripts of the hearings are of record.  All matters concerning entitlement to additional hearings are resolved and the appeal has been returned to the VLJ as the sole remaining member under 38 U.S.C.A. § 7107(c).  

For administrative clarification purposes, the Board notes that the service connection (non-dental) issues arose initially from an August 1994 rating decision that denied service connection for hypertension and a July 2005 rating decision that denied service connection for headaches and sleep apnea.  As to the dental service connection issue on appeal, the Board notes that a February 1989 VA dental rating for outpatient treatment purposes only denied entitlement.  It was also noted the tooth was not service incurred or aggravated because the incident did not constitute trauma for service connection purposes.  The service connection issue was subsequently perfected for appellate review.  

An October 2010 Board decision, however, noted that a claim for service connection for a dental disorder, for compensation purposes, should also be construed as a claim for VA outpatient dental treatment.  Citing Mays v. Brown, 5 Vet. App. 302 (1993), the treatment issue was added as a matter for appellate review.  Upon review of the record, the Board finds the entitlement to dental treatment issue is moot.  VA records show the Veteran is currently receiving a 100 percent schedular disability rating.  As such, he is entitled to VA outpatient dental treatment (Class IV) under 38 C.F.R. § 17.161(h) (2017).  There is no indication that treatment has been denied.  Additionally, records show he has received VA dental treatment in February 2015 presumably as a result of his participation in a VA vocational rehabilitation program.  As to the specific issue of treatment for tooth #7, the Board finds this matter is moot as the available evidence shows the Veteran, in fact, received treatment for this tooth in August 1989.  To the extent his earlier claim may be construed as a retroactive claim for failure to treat and replace tooth #7, the Board finds this involves a determination as to the need for and appropriateness of specific medical treatment that is not within its appellate jurisdiction.  See 38 C.F.R. § 20.101(b) (2017).  The issue on the title page has been, accordingly, revised.

As to the issues on appeal under the provisions of 38 U.S.C.A. § 1151 (formerly 38 U.S.C.A. § 351, redesignated Aug. 6, 1991), the October 2010 Board decision, among other things, noted that VA laws concerning claims as a result of VA treatment were substantially revised effective October 1, 1997.  The claims for compensation under section 1151 for a cervical myofascial pain disorder, a shoulder disorder, a right leg disorder, a jaw disorder, and codeine dependence were noted to have been received prior to October 1, 1997.  These matters were denied in a March 1991 rating decision.  The claim for compensation under section 1151 for an anal sphincter muscle disorder was noted to have been received after the 1997 revisions.  VA records show the Veteran's claim for compensation for an anal sphincter muscle disorder was received on November 30, 1999.  An October 2002 rating decision the RO denied entitlement to compensation for an anal sphincter muscle disorder.  As such, this issue must be considered under the revised law.

As to the increased rating and TDIU issues on appeal, the Board notes that a March 1991 rating decision denied entitlement to a TDIU and that an August 2004 rating decision granted service connection for dysthymia.  Although the August 2004 decision assigned a 10 percent rating effective from March 25, 1990, a January 2005 rating decision found clear and unmistakable error in the prior determination and established an effective date from April 25, 1990.  The Board, in its July 2012 decision, bifurcated the dysthymia increased rating issue and remanded the specific issue of entitlement to an initial rating in excess of 10 percent for dysthymia for the period from April 25, 1990, to January 22, 2009.  A subsequent May 2017 rating decision granted a 100 percent rating for major depressive disorder (previously dysthymia) effective from April 17, 2017.  

The Veteran has not raised the matter of entitlement to an extraschedular rating, and the evidence does not present any exceptional or unusual circumstances.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  No action as to this matter is required.


FINDINGS OF FACT

1.  A chronic headache disability was not manifest during service or within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability.

2.  Hypertension was not manifest during service or within one year of active service discharge; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability.

3.  A sleep apnea was not manifest during service; and, the preponderance of the evidence fails to establish that a present disability is etiologically related to service or to a service-connected disability.

4.  An unresolved dental disability of tooth #7 and a chronic dental condition, to include as secondary to service-connected GERD, for compensation purposes is not shown; and, the preponderance of the evidence fails to establish that a loss of teeth manifest during this appeal is etiologically related to service trauma or bone loss due to disease.

5.  The persuasive evidence of record demonstrates that additional cervical spine disabilities, including myofascial pain syndrome and headaches possibly associated with a chronic cervical spine disorder, the Veteran developed in 1988 coincidental with VA hospitalization and the reported incident involving another patient on August 10, 1988, were not the result of a disease or injury suffered as the result of VA hospitalization.  

6.  The credible evidence of record demonstrates no specific injuries to the shoulder, right leg, or jaw were sustained during VA treatment, including as a result of the reported incident involving another patient on August 10, 1988, nor that any disease or injury incurred during such treatment resulted in an additional disability manifested by headaches and blackouts.

7.  The evidence of record shows that the Veteran was treated for codeine dependence and that VA records demonstrate he was prescribed pain-relief medication, but that his abuse of that medication was due to his own misconduct; there is no evidence an additional codeine dependence disability actually the result of VA treatment.

8.  The persuasive evidence of record demonstrates that an additional anal sphincter muscle disability the Veteran developed subsequent to a March 1991 VA examination was not incurred as a result of VA negligence, careless, or other fault and that VA exercised the degree of care that would be expected of a reasonable health care provider at that time.

9.  The evidence demonstrates that for the period from April 25, 1990, to January 22, 2009, the Veteran's service-connected dysthymia was manifested by no more than a mild impairment of social and industrial adaptability or an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

10.  The Veteran's service-connected disabilities prior to April 17, 2017, are not shown to have rendered him unable to secure and follow a substantially gainful occupation; and, subsequent to that date, the issue of TDIU is moot.


CONCLUSIONS OF LAW

1.  The criteria for service connection for headaches, to include as secondary to service-connected tinnitus and lumbosacral strain, have not been met.  38 U.S.C. §§ 1110, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

2.  The criteria for service connection for hypertension, to include as secondary to service-connected dysthymia or medications taken for service-connected disabilities, have not been met.  38 U.S.C. §§ 1110, 1112, 1113 (West 201); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

3.  The criteria for service connection for sleep apnea, to include as secondary to service-connected lumbosacral strain and GERD, have not been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

4.  The criteria for service connection for dental disability of tooth #7 and a chronic dental condition, to include as secondary to service-connected GERD, for compensation purposes have not been met.  38 U.S.C. § 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2017).

5.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for a cervical myofascial pain disorder have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

6.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for headaches have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

7.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for blackouts have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

8.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for a shoulder disorder have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

9.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for a right leg disorder have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

10.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for a jaw disorder have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

11.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for codeine dependence have not been met.  38 U.S.C. § 1151 (effective prior to October 1, 1997); 38 C.F.R. § 3.358 (2017).

12.  The criteria for compensation for compensation under 38 U.S.C.A. § 1151 for an anal sphincter muscle disorder have not been met.  38 U.S.C. § 1151 (West 2014); 38 C.F.R. § 3.361 (2017).

13.  The criteria for an initial rating in excess of 10 percent for dysthymia for the period from April 25, 1990, to January 22, 2009, have not been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.126, 4.130, Diagnostic Code 9433 (effective before and after November 7, 1996).  

14.  The criteria for entitlement to a TDIU are not met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.340, 4.16 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has not raised any issue with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

Service Connection Claims

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2014).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24) (West 2014); 38 C.F.R. § 3.6(a), (d) (2017); Biggins v. Derwinski, 1 Vet. App. 474 (1991).  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1) (2017).  The regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service.  See Smith v. Shinseki, 24 Vet. App. 40 (2010); but see, Hill v. McDonald, 28 Vet. App. 243, 255 (2016) (If a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation).

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2017).  When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Certain chronic diseases, including hypertension (as a cardiovascular disorder) and headaches (as an organic disease of the central nervous system), are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a).  Headaches as a result of an organic disease of the central nervous system is a qualifying chronic disease.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case.

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 C.F.R. § 3.102 (2017).

The Veteran contends that he has headache, hypertension, and sleep apnea disabilities as a result of service, to include as secondary to service-connected disabilities.  In statements and testimony in support of his claim he asserted his sleep apnea was secondary to his back disability, that he had headaches that were secondary to hearing loss and tinnitus disabilities, and that his hypertension was aggravated by medications taken for his service-connected disabilities.  In correspondence dated in February 2009 he asserted that he had sleep apnea and rotting teeth as a result of GERD.  At a subsequent video conference hearing he asserted that internet source materials indicated use of an Albuterol inhaler led to tooth decay and tooth loss.  

VA records show that service connection has been established for major depressive disorder (100 percent), residuals of injury to the lumbosacral area (40 percent), residuals of a left ankle injury (20 percent), radiculopathy of the left lower extremity sciatic nerve (20 percent), radiculopathy of the right lower extremity sciatic (20 percent), radiculopathy of the left lower extremity femoral nerve (20 percent effective), radiculopathy of the right lower extremity femoral nerve (20 percent effective), tinnitus (10 percent), GERD (10 percent), and bilateral hearing loss (10 percent).  

Service treatment records are negative for complaint, diagnosis, or treatment for headache, hypertension, and sleep apnea.  The Veteran's January 1973 separation examination revealed normal clinical evaluations of the vascular and neurologic systems.  A November 1979 report of medical history noted the Veteran reported having had severe headaches.  The examiner noted that his past headaches were related to noise exposure at work.  A June 1985 report noted he complained of headaches and report he had been drinking alcohol the previous evening.  In a January 1988 report of medical history the Veteran noted having had frequent or severe headaches and frequent trouble sleeping.  He indicated he did not know if he had high or low blood pressure.  The examiner noted his report was reviewed and there were no disabilities.  An examination revealed clinically normal vascular and neurologic evaluations.  Sitting blood pressure was 108/66.  

VA treatment records include an August 1989 neurology clinic report noted the Veteran reported having headaches that worsened after an MVA.  The examiner's impression was chronic muscle contraction headache, possibly related to tension and a cervical sprain.  It was noted that it was possibly also related to his low back problem.  Private treatment records include an October 2001 report noted a sleep study revealed evidence of severe obstructive sleep apnea.  

VA examination in January 2005 included a diagnosis of headaches.  It was noted that the Veteran claimed his headaches were due to tinnitus, but the examiner found that tinnitus did not cause headaches.  The examiner stated it was suspected that headaches may be related to temporomandibular joint dysfunction since headaches were involved with stretching the jaw or taking Tylenol.  

VA neurological disorders examination in February 2011 included a diagnosis of tension-type headaches that were medically well controlled with over-the-counter medication.  The examiner found that, objectively, there was a lack of evidence supportive of a military nexus.  It was further noted that based upon a review of the evidence his tension headaches were not caused by or worsened by his service-connected low back disorder.  In a June 2011 addendum the examiner found his tension headaches were not considered to have been caused by, a result of, related to, or aggravated by his service-connected tinnitus.  

VA examination in June 2015 found the Veteran's obstructive sleep apnea (OSA) disability was less likely proximately due to or the result of a service-connected condition.  She stated that obesity was the best documented risk factor for OSA and that the Veteran had a narrow aperture of the airway upon examination.  It was asserted that GERD would not be considered causative or "aggravative" based upon a review of the medical literature.  She also found that the Veteran's essential hypertension was less likely proximately due to or the result of a service-connected condition.  As rationale it was noted the disorder was a common medical condition and that treatment records for the Veteran revealed a positive family history.  The disorder was medically well controlled and there was a lack of evidence to support that it was caused or aggravated by a service-connected disability or any medication taken for such disorders.  

Based upon the evidence of record, the Board finds that a chronic headache disability, hypertension, and sleep apnea were not manifest during service.  It is further found that a chronic headache disorder as a result of an organic disease of the central nervous system and hypertension are not shown to have been manifest within one year of the Veteran's discharge from active service.  The preponderance of the evidence also fails to establish that present headache, hypertension, or sleep apnea disabilities are etiologically related to service or to a service-connected disability.  There is also no evidence that any such present disorder is etiologically related to service nor was aggravated during or as a result of ACDUTRA or INACDUTRA service.  The February 2011 and June 2015 VA opinions in this case are persuasive and based upon adequate rationale.  The examiners are shown to have reviewed the evidence of record and to have adequately considered the statements and reported symptom manifestation history of record.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  

The Board notes that VA has held that obesity is not a disability for service connection or secondary service connection compensation purposes, but that obesity may act as an "intermediate step" between a service-connected disability and a current disability for which secondary service connection may be established.  See VAOPGCPREC 1-2017 (Jan. 6, 2017).  Upon review of the evidence of record in this case, there is no probative evidence demonstrating that a service-connected disability caused the Veteran to become obese nor that any claimed disability would not have occurred but for any obesity caused by a service-connected disability.  The Veteran has not asserted any such theory of causation and the overall evidence of records demonstrates he has significant nonservice-connected disabilities that contribute physical limitations.  No additional action as to this matters is required.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (The duty to assist is not a fishing expedition "to determine if there might be some unspecified information which could possibly support a claim."). 

Consideration has also been given to the Veteran's personal assertion that he has present headache, hypertension, and sleep apnea disabilities related to service.  However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). 

The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis.  He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating the claimed disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value.  

With regard to articles submitted in support of the claims, the Board notes that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998).  In the present case, the articles submitted by the Veteran are not accompanied or otherwise supported by the opinion of any medical expert.  The Board concludes that the information is insufficient to establish the required medical nexus opinions.

In conclusion, the Board finds that service connection for headaches, hypertension, and sleep apnea is not warranted.  When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  The preponderance of the evidence is against the Veteran's service connection claims.

Dental Claim

During the course of this appeal, VA regulations pertinent to dental claims were revised.  It was noted that the effect of this action is to ensure that the rating schedule used current medical terminology and to provide detailed and updated criteria for evaluation of dental and oral conditions for disability rating purposes.  See 82 Fed. Reg. 36,080 (Jan. 27, 2012).  No substantive revisions, however, were made as to the present matters at issue.  

VA law provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment, and rating action should consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service and, when applicable, to determine whether the condition is due to combat or other in-service trauma, or whether the veteran was interned as a prisoner of war.  38 C.F.R. § 3.381 (effective before and after February 29, 2012).

For VA compensation purposes the loss of teeth due to the loss of substance of the body of the maxilla or mandible are disabilities but only if due to bone loss through trauma or disease such as osteomyelitis.  See 38 C.F.R. § 4.150, Diagnostic Code 9913 (2016).  It is noted that the loss of the alveolar process as a result of periodontal disease are not disabling for VA purposes.  See Byrd v. Nicholson, 19 Vet. App. 388, 394 (2005) ("The Secretary has chosen to eliminate periodontal disease, among other common conditions such as 'carious teeth' and 'missing teeth' from diseases generally eligible for VA compensation and that decision as reflected in the rating schedule, . . . is not reviewable by this Court.").

The Veteran contends that service connection compensation is warranted for a dental disability to tooth #7 and a chronic dental condition secondary to his service-connected GERD.  In statements and testimony in support of his claim he asserted that a gold crown to tooth #7 was damaged when he bit into a piece of chicken during military training in 1986 and that he had rotting teeth as a result of GERD.  He asserted, in essence, that he developed problems with tooth #7 as a result of the 1986 incident that required replacement of the crown.  He has not asserted, and the evidence does not indicate, that he has any loss of any other teeth as a result of combat or other in-service trauma.

A July 1986 DA Form 2173, statement of medical examination and duty status, noted the Veteran chipped a gold crown to tooth #7.  It was noted he had damaged the cutting edge of the tooth when he bit into a chicken bone. 

In January 1988 VA received the Veteran's claim for service connection and treatment for a dental condition sustained in July 1986.  

VA correspondence dated in March 1988 notified the Veteran that his request for dental care had been forwarded to a VA Medical Center as a matter within their jurisdiction.  

A February 1989 VA dental rating for outpatient treatment purposes only denied entitlement and noted the Veteran chipped the crown to tooth #7 while eating chicken in the mess hall.  It was noted the tooth was not service incurred or aggravated because the incident did not constitute trauma for service connection purposes.  

VA treatment records dated in August 1989 noted a crown to the Veteran tooth #7 was smoothed and polished at the distal edge to his satisfaction.

A May 1995 VA dental rating for outpatient treatment purposes only noted trauma to teeth #23 and #24.  It was noted there was no combat trauma.  

In correspondence dated in September 2014 the Veteran report he was scheduled for VA dental treatment.  He stated the treatment plan include tooth extraction in preparations for full dentures.  

VA treatment records dated in February 2015 noted the Veteran was status-post multiple dental extractions and removal of mandibular tori.  

Based upon the evidence of record, the Board finds an unresolved dental disability of tooth #7 and a chronic dental condition, to include as secondary to service-connected GERD, for compensation purposes are not shown.  The preponderance of the evidence fails to establish that a loss of teeth manifest during this appeal is etiologically related to service trauma or bone loss due to disease.  The Veteran's claim for service connection compensation for a dental disability is denied.

1151 Claims Received Before October 1, 1997

During the course of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151 were revised.  Effective August 6, 1991, the code section was redesignated from 351 to 1151 and the phrase "administered by the Veterans' Administration" was substituted with "administered by the Secretary."  As of that date, 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . . awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected."  38 U.S.C.A. § 1151 (West 1991). 

In 1991, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") invalidated 38 C.F.R. § 3.358(c)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151.  Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994).  The United States Supreme Court in affirming the Court's decision held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability and that there need be no identification of "fault" on the part of VA. 

In March 1995, VA published amended regulations to conform to the Supreme Court decision.  The revised provisions of 38 C.F.R. § 3.358 stated that where it is determined that there is additional disability resulting from an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment compensation will be payable for such additional disability.  38 C.F.R. § 3.358 (1995). 

Subsequently, the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997, to include the requirement of fault.  See 38 U.S.C.A. § 1151 (Supp. 1998).  However, in a precedent opinion, VA's General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to that date.  See VAOPGCPREC 40-97 (Dec. 31, 1997).  

Revised regulations now provide that under the provisions of 38 U.S.C.A. § 1151(a), for claims received by VA before October 1, 1997, compensation will be payable if it is determined that there is an additional disability resulting from a disease or injury or aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, examination, or vocational rehabilitation training.  38 C.F.R. § 3.358 (2017).

In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately.  38 C.F.R. § 3.358(b)(1).  Compensation will not be payable under 38 U.S.C.A. § 1151 for the continuance or natural progress of disease or injuries for which the hospitalization, medical or surgical treatment, or examination was furnished unless VA's failure to exercise reasonable skill and care in the diagnosis of treatment of the disease or injury caused additional disability or death that probably would have been prevented by proper diagnosis or treatment.  38 C.F.R. § 3.358(b)(2). 

It is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as a result of VA hospitalization, medical or surgical treatment or examination, and not merely coincidental therewith.  38 C.F.R. § 3.358(c)(1).  The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination.  38 C.F.R. § 3.358(c)(2).  Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative.  "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered.  38 C.F.R. § 3.358 (c)(3). 

The United States Court of Appeals for the Federal Circuit has held that 38 U.S.C.A. § 1151 effective prior to October 1, 1997, implied only a causal connection, not fault, was required if the injury did not result from a veteran's own misconduct and that the term "hospitalization" was not limited to instances of direct interaction with VA personnel, instead of including all events occurring during the veteran's stay at the VA facility.  Jackson v. Nicholson, 433 F.3d 822, 825 (2005).  It was further held that an "intervening cause" did not preclude liability where there existed a causal connection between the hospitalization and the injury.  Id. at 826.

In this case, the Veteran contends that he has additional disabilities, including cervical myofascial pain disorder, a shoulder disorder, a right leg disorder, a jaw disorder, and codeine dependence as a result of VA treatment.  His claims as to these matters were received by VA prior to October 1, 1997.  Specifically, he contends that he developed or aggravated existing cervical spine, shoulder, right leg, and jaw disabilities as a result of an assault by another patient while he was hospitalized in a VA medical facility on August 10, 1988.  He asserted he developed codeine dependence as a result of his VA treatment providers having prescribed pain-relief medication.

Private medical records dated in March 1975 show the Veteran was involved in a motor vehicle accident (MVA) in January 1975 and that a diagnosis of cervical sprain was provided.  An October 1987 report noted he complained of pain including to the upper back and shoulder as a result of a work-related injury.  The diagnoses included generalized myofasciitis to the cervical spine.  

VA hospital records show the Veteran was admitted on July 27, 1988, and discharged on August 19, 1988, with diagnoses including rehabilitation for persistent pain in the neck and low back; status-post recent strain injury of the neck and low back from a MVA on July 8, 1988; history of multiple strain injuries in 1971, 1972, and 1987 to the neck and low back with chronic pain; and history of injury to the right leg according to the Veteran's statements.  It was noted that on August 10, 1988, the Veteran reported his neck was twisted by a psychiatry patient and complained of increased pain since then.  He was seen by the chief of the psychiatry service, a physiatrist, and a neurologist and that a follow-up X-ray study of the cervical spine revealed no evidence of recent new abnormal findings.  

A September 1988 private medical report noted the Veteran stated that during VA hospitalization he was attacked by another patient who twisted his neck and made his neck markedly worse.  After discharge he still had pain in his neck, shoulder, low back, right leg, and jaw.  The diagnoses included strain and sprain to the lumbar and cervical spine.

In an October 1988 report of medical history the Veteran noted medical problems including swollen or painful joints, frequent or severe headaches, dizziness or fainting spells, and painful or "trick" shoulder or elbow.  The examiner noted a complex history with injuries sustained in an MVA including low back pain, whiplash of the cervical spine, and chronic right leg pain, and that during hospitalization he was attacked and suffered neck and back pain and numbness to the right leg.  An October 1988 service department retention examination revealed limited range of motion to the cervical spine and shoulders and right lower extremity weakness.  A sitting blood pressure reading of 120/80 was provided.  

VA treatment records show the Veteran received rehabilitation therapy in November 1988 and that he complained of chronic recurrent neck pain after his discharge on November 30, 1988.  X-ray studies of the shoulder and right hip in December 1988 were normal.

In a December 1988 statement the Veteran reported that on August 10, 1988, another VA patient jumped on his back and twisted his neck.  He stated that the attack put him in a wheelchair, that he underwent therapy in October 1988, and in November 1988 was admitted to a VA Medical Center for pain in the back, neck, shoulders, and right leg.  In correspondence received by VA on February 7, 1989, he requested entitlement to compensation for an additional disability to his neck due to injury during VA hospitalization.  

A January 1989 programmatic\psychological evaluation including muscle and functional capacity testing summarized the Veteran's medical history and the clinical observations and he demonstrated inappropriate illness behavior ranging from descriptions of pain in uninvolved areas to requests for medication and treatment after testing and evaluation.  VA treatment records dated in February 1989 show a psychological evaluation revealed he was using his pain syndrome in a psychological fashion.  It was noted he presented evidence of significant symptom magnification and over presentation of pain problems.  It was the examiner's opinion that he presented as a passive-aggressive personality with a good deal of undercurrent of anger and suspiciousness.  A March 1989 neurology consult report summarized his complaints and medical history and found the neurological examination was entirely normal.  The examiner's assessment was chronic neck and back pain with significant functional overlay.  It was noted that there was no medical treatment that could be offered and the examiner suggested that the Veteran be referred to the psychology service.

VA hospital records show he was treated from March 23, 1989, to April 6, 1989, including for functional impairment rehabilitation and exacerbation of low back and neck pain.  It was noted he had multiple evaluations in the past and that a recent magnetic resonance imaging (MRI) scan showed only mild congenital spinal cord stenosis.  Back examination was noted to be difficult due to excessive muscle guarding to touch and complaints of pain.  Neurological examination and strength testing to the upper and lower extremities were normal.  It was noted that on March 30, 1989, he was found unconscious in the corridor, but that no seizure was observed and no physical examination of laboratory test abnormalities were found.  

In correspondence received in April 1989 the Veteran reported he sustained injuries including to the neck, shoulders, right leg, and jaw.  In another April 1989 statement he reported he had headaches and loss of consciousness due to intense back pain.  He reiterated his claims concerning an attack in August 1988 in an April 1989 VA Form 21-8940 (TDIU application).  

An April 1989 medical report noted the Veteran had participated in a three-week outpatient pain management and rehabilitation program and that he represented a difficult rehabilitation and medical management problem largely because of the significant role his pain complaints played in the psychodynamics of his personality.  The examiner also expressed concern about possible financial gain factors.  

VA hospital records revealed treatment from May 1989 to June 1989 with discharge diagnoses including chronic neck pain, minimal degenerative joint disease of the cervical spine, and psychophysiological reaction with paranoid trends by history.  It was noted that an X-ray study showed mild narrowing of the intervertebral disc space at C4 with muscle spasm and that a bone scan was negative, but that mild osteoporosis could not be ruled out.  Electromyography (EMG) and nerve conduction studies revealed normal conduction studies of the right median and ulnar nerves.  

An August 1991 statement from the Veteran's private chiropractor, J.F.S., D.C., noted he reinjured his back, neck, and shoulder in a July 1988 MVA and that his headaches became more severe.  It was also noted that he had been brutally battered by a mentally ill patient at a VA Medical Center in August 1988 re-aggravating his symptoms with very severe headaches, dizziness, and blackout spells.  No rationale for the opinion was provided.

VA hospital records revealed treatment from March 1990 to April 1990 with diagnoses including opiate dependence, chronic pain syndrome to the neck and back thought to be due to malingering, and mixed personality disorder.  The provided history included a comprehensive report of the Veteran's treatment subsequent to his reported assault during VA hospitalization in August 1988.  

In correspondence received on April 25, 1990, the Veteran requested entitlement to compensation for narcotic dependency.  He reiterated his claims in subsequent statements and hearing testimony.  

A March 1991 rating decision denied entitlement to compensation for additional disabilities manifested by pain in the neck, shoulder, right leg, and left jaw and for headaches, dizziness, blackouts, and codeine dependency.  The RO found the evidence demonstrated no additional disabilities as a result of the alleged incident during VA hospitalization in August 1988.  It was further found the Veteran's codeine dependency was not shown to be the result of any VA carelessness, negligence, or other misconduct.  

VA treatment records include an August 1989 neurology clinic report noted the Veteran reported having headaches that worsened after an MVA.  The examiner's impression was chronic muscle contraction headache, possible related to tension and a cervical sprain.  It was noted that it was possibly also related to his low back problem.  Private treatment records include an October 2001 report noted a sleep study revealed evidence of severe obstructive sleep apnea.  

VA examination in January 2005 included a diagnosis of headaches.  It was noted that the Veteran claimed his headaches were due to tinnitus, but the examiner found that tinnitus did not cause headaches.  The examiner stated it was suspected that headaches may be related to temporomandibular joint dysfunction since headaches were involved with stretching the jaw or taking Tylenol.  

VA neurological disorders examination in February 2011 included a diagnosis of tension-type headaches that were medically well controlled with over-the-counter medication.  The examiner found that, objectively, there was a lack of evidence supportive of a military nexus.  It was further noted that based upon a review of the evidence his tension headaches were not caused by or permanently worsened by his service-connected low back disorder.  In a June 2011 addendum the examiner found his tension headaches were not considered to have been caused by, a result of, related to, or aggravated by his service-connected tinnitus.  

VA examination in June 2015 found a review of the evidence demonstrated that the Veteran's MVA history was considered to be the more likely cause for the Veteran's current neck condition.  The examiner provided a diagnosis of myofascial pain syndrome and noted a date of diagnosis in 1988.  It was noted that the record was reviewed and the examiner provided a summary of the pertinent evidence of record.  

The Board finds the persuasive evidence demonstrates that additional cervical spine disabilities, including myofascial pain syndrome and headaches possibly associated with a chronic cervical spine disorder, the Veteran developed in 1988 coincidental with VA hospitalization and the reported incident involving another patient on August 10, 1988, were not the result of a disease or injury suffered as the result of VA hospitalization.  Treatment records show the Veteran was involved in an incident with another VA patient on August 10, 1988, during a period of VA hospitalization with a specific report contemporaneous to the evidence of a twisting of the neck.  However, the overall evidence of record, including the June 2015 VA examiner's opinion, is found to be persuasive as to this matter.  

It is significant in this case that the medical evidence shows the Veteran sustained earlier cervical spine injuries including as a result of a July 1988 MVA and that treatment records just prior to the August 10, 1988, incident he complained of chronic neck pain.  In fact, a diagnosis of generalized myofasciitis to the cervical spine was first provided in October 1987.  Further, that upon his report of the August 1988 incident at issue VA records show he was seen by a physiatrist and a neurologist and that a follow-up X-ray study of the cervical spine revealed no evidence of recent new abnormal findings.  To the extent that the Veteran's statements are indicative of a more severe cervical spine injury in August 1988, the Board finds such reports warrant a lesser degree of probative weight.  

In determining whether evidence submitted by a claimant is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).  The Board finds based upon a review of the overall evidence of record the Veteran's report of a more severe cervical spine injury in August 1988 is not credible due to inconsistency with the other evidence of record.  In fact, the contemporaneous hospital records noted evaluations and an X-ray study revealed no evidence of recent new abnormal findings.  

It is additionally significant that a January 1989 programmatic\psychological evaluation noted the Veteran demonstrated inappropriate illness behavior and presented evidence of significant symptom magnification with over presentation of pain problems.  An April 1989 report noted concern about possible financial gain factors.  An April 1990 VA hospital discharge report provided a comprehensive report of the Veteran's medical history and treatment subsequent to his reported assault during VA hospitalization in August 1988 and found his chronic pain syndrome to the neck and back were thought to be due to malingering.  

The Board also finds that the credible evidence of record demonstrates no specific injuries to the shoulder, right leg, or jaw were sustained during VA treatment, including as a result of the reported incident involving another patient on August 10, 1988, nor that any disease or injury incurred during such treatment resulted in an additional disability manifested by headaches and blackouts.  The Veteran's reports as to having sustained injuries other than as involved in the neck twisting incident are found to be inconsistent with the August 1988 discharge report and to be not credible due to self-interest, malingering, and desire for monetary gain.  

Although a September 1988 private medical statement noted the Veteran complained of pain in the shoulder, low back, right leg, and jaw reportedly due to an attacked by another patient who twisted his neck and made his neck markedly worse, the examiner's diagnoses included only strain and sprain to the lumbar and cervical spine.  An October 1988 report of medical history also shows he noted medical problems including swollen or painful joints, frequent or severe headaches, dizziness or fainting spells, and painful or "trick" shoulder or elbow; however, the examiner noted a complex history with injuries sustained in an MVA, whiplash of the cervical spine, and chronic right leg pain.  It was reported that during hospitalization he was attacked and suffered neck and back pain and numbness to the right leg, but the examiner provided no rationale for the statement and identified no specific shoulder, jaw, headache, or dizziness disorders.  An August 1991 private chiropractor statement noted he had reinjured his back, neck, and shoulder in a July 1988 MVA and that his headaches became more severe, and also noted that he had been brutally battered by another patient in August 1988 re-aggravating his symptoms with very severe headaches, dizziness, and blackout spells.  

The Board finds these reports are not probative of the Veteran's claims as they represent either information apparently provided based solely on the Veteran's report or are based upon more severe injuries and events which the Board finds to be not credible.  See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record);  Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If [an] opinion is based on an inaccurate factual premise, then it is correct to discount it entirely." (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)).  

The Board acknowledges that the Veteran was treated for opiate dependence during a period of VA hospital treatment from March 1990 to April 1990 and that VA records demonstrate he was prescribed pain-relief medication for his service-connected low back and left ankle disabilities at that time; however, his abuse of that medication is considered to have been due to his own misconduct.  The Veteran has provided no evidence in support of this specific claim indicating that he was provided improper medication or instruction as to medication use nor that he has any present codeine dependency disability.  In fact, a May 2003 VA examination revealed no indication of any addiction problem at that time.  The Board finds there is no evidence that any additional codeine dependence disability manifest at any time during the appeal is actually the result of VA treatment.  The preponderance of the evidence is against the Veteran's claims.

1151 Claim Received After October 1, 1997

VA law provides that for claims received by VA on or after October 1, 1997, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if that additional disability or death were service-connected.  A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability or death was:  (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable.  38 U.S.C.A. § 1151 (West 2014); see also Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013).  

To obtain compensation, a claimant must show:  (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable.  To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran's informed consent.  38 U.S.C.A. § 1151(a) (West 2014); 38 C.F.R. § 3.361(c)(1), (d)(1) (2017).  

To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after the care, treatment, examination, services, or program has stopped.  VA considers each involved body part or system separately.  38 C.F.R. § 3.361(b).

Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements.  Actual causation is required.  To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death.  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause.  Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination.  Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c).

With regard to carelessness or negligence, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent.  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d)(1). 

With regard to reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen.  The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). 

The Veteran contends that he sustained an anal disability as a result of a VA rectal examination in March 1991.  In statements and testimony provided in support of his claim he stated that subsequent to the examiner he experienced anal leakage and asserted that the examiner had stretched his rectum causing an anal sphincter muscle disability.  

VA records include an August 1992 report noting the Veteran refused an examiner's request to examine his sphincter and underwear and claimed that he had experienced problems with his rectum since an earlier March 1991 examination.  The examiner added that there was no known incident of fecal incontinence as a result of a rectal examination.  It was noted, however, that the complaint was being taken seriously and that neurology and proctology were planned.  An August 1992 proctology consult noted the Veteran complained of stool leakage and a feeling that his sphincter had been stretched following a March 1991 rectal examination.  The examiner noted he had refused any examination, but reported he was scheduled to see a neurologist for his multiple back injuries that could be the cause of his anal dysfunction.  The diagnoses included history of low back injury and fecal incontinence.  

VA rectum and anus examination in December 1999 noted the Veteran took a considerable amount of pain medication for his back and leg which produced constipation and some rectal bleeding.  It was noted he had some scarring around the anus due to past fissures.  An examination revealed some minimal degree of anal stenosis with good sphincter tone.  A colonoscopic examination was recommended.  Subsequent records showed the Veteran failed to report for scheduled colonoscopies in January 2000 and February 2000.  

VA examination in June 2015 found no evidence that an anal disability was caused or aggravated as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault.  

Based upon the evidence of record, the Board finds that an additional anal sphincter muscle disability the Veteran developed subsequent to a March 1991 VA examination was not incurred as a result of VA negligence, careless, or other fault and that VA exercised the degree of care that would be expected of a reasonable health care provider at that time.  The Veteran complains of anal leakage and incontinence subsequent to a March 1991 VA examination.  He also states that a December 1999 examination revealed scarring around the anus due to past fissures and rectal bleeding due to constipation associated with pain medication.  However, the June 2015 VA examiner specifically found there was no evidence that an anal disability was caused or aggravated as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault.  The Board finds the June 2015 examiner's opinion is persuasive.  The claim for an additional anal sphincter muscle disability as a result of VA treatment is denied. The preponderance of the evidence is against the claim.

Increased Rating Claim

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.  Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition.  It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App.  505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2017).  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207-08 (1994).  Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited.  38 C.F.R. § 4.14 (2017).  

When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission.  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126 (2017). 

During the course of this appeal the regulations for rating mental disabilities were revised and the applicable sections were renumbered effective November 7, 1996.  VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects.  VAOPGCPREC 7-2003 (Nov. 19, 2003).  The revised amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied.  VAOPGCPREC 3-2000 (Apr. 10, 2000). 

The rating criteria were subsequently revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5).  Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment, but did not invalidate the previously reported GAF scores.  No additional substantive revisions have been made to VA's General Rating Formula for Mental Disorders.  See 80 Fed. Reg. 14,308 (Mar. 19, 2015).  

Prior to November 7, 1996, regulations provided a 10 percent disability rating for mild impairment of social and industrial adaptability, a 30 percent disability rating with evidence of "definite" impairment of social and industrial adaptability, a 50 percent disability rating for mental disorders when there was evidence of "considerable" impairment of social and industrial adaptability, a 70 percent rating for "severe" impairment of social and industrial adaptability, and a 100 percent rating where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community or when there were totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior or when there was a demonstrable inability to obtain or retain employment.  See 38 C.F.R. § 4.132, General Rating Formula for Psychoneurotic Disorders (effective before November 7, 1996).  

VA's General Counsel concluded that the term "definite" was to be construed as "distinct, unambiguous, and moderately large in degree."  It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large."  VAOPGCPREC 9-1993 (Nov. 9, 1993).  Under the Diagnostic and Statistical Manual for Mental Disorders (4th ed.) (DSM-IV), the GAF score was previously described for VA purposes as a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996).  GAF scores ranging between 61 to 70 indicated mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning "pretty well," and has some meaningful interpersonal relationships.  Scores between 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores between 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

Effective November 7, 1996, the General Rating Formula for Mental Disorders provided a 10 percent rating when the service-connected disability causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent rating is assigned when the service-connected disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events).  

A 50 percent rating is assigned when the service-connected disability causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent evaluation is assigned when the service-connected disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. 

A 100 percent rating is assigned when the service-connected disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name.  

38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (effective November 7, 1996).

The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings.  Id.  The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation.  Id.  

In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was also noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id.

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant.  However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 4.3 (2017).

The pertinent evidence of record shows that in his April 1989 VA Form 21-8940 the Veteran asserted that he became too disabled to work as a result of his low back and left ankle disabilities in October 1987.  He reported he had completed three years of college education and that he had past work experience as a glass cutter and as a postal carrier.  In a February 1990 VA Form 21-8940 he reported he had completed four years of college education.  In correspondence received on April 25, 1990, he requested entitlement to service connection compensation for depression.  

VA hospital records revealed treatment from May 1989 to June 1989 with discharge diagnoses including chronic neck pain, minimal degenerative joint disease of the cervical spine, and psychophysiological reaction with paranoid trends by history.  At discharge, the Veteran was found to be mentally competent but unemployable.

A June 1990 rating decision denied entitlement to a TDIU.  The RO acknowledged his low back and left ankle disabilities, but found that given his age and educational background that he should be able to obtain and sustain more sedentary employment.

An August 1990 medical opinion by a VA staff psychiatrist found the Veteran had features of an adjustment disorder with mixed emotions features.  A review of past clinical findings revealed that his complaints of low back pain had been in excess of what would be expected from the physical findings which was indicative of a somatoform pain disorder as part of his psychiatric diagnosis.  He was receiving psychotherapy, and anxiolytic and anti-depressant medication.  From a psychiatric standpoint he was found to be competent and employable.  

An August 1991 statement from a private chiropractor, J.F.S., D.C., found the Veteran was totally disabled at the present time.  A medical history of his low back injuries was provided and it was noted he reinjured his back, neck, and shoulder in a July 1988 MVA and his headaches became more severe.  It was also noted that he had been brutally battered by a mentally ill patient at a VA Medical Center in August 1988 re-aggravating his symptoms with very severe headaches, dizziness, and blackout spells.  

VA examination in April 1992 included diagnoses of alcohol and codeine dependency and adjustment disorder with mixed emotional features.  The examiner noted the Veteran was alert and oriented to time, place, and personal identification.  There was a preoccupation with his illness, but no hallucinations or delusions.  Recent and remote memory were normal.  There was no evidence of severe psychiatric symptoms that would prevent him from work at that point in time.

VA examination in September 1992 included a diagnosis of chronic depression that had existed since 1987.  The examiner noted the Veteran was alert and oriented to the correct date.  He had suicidal feeling, but denied any plans.  His insight was fair and his judgment was fair to good.  Regarding the question of employability, the examiner noted the Veteran tended to overcompensation for his perceived disabilities, and that his mental limitations appeared to be a minimal prevention to employment at the present time.

An October 1992 rating decision granted entitlement to nonservice-connected disability pension benefits.  The RO found him to be unemployable based upon age and disability.  An October 1991 Social Security Administration (SSA) decision found the Veteran was disabled based upon evidence of back, neck, and mental conditions.  SSA records show a primary diagnosis of back disorder and a secondary diagnosis of affective disorder with disability beginning in October 1987.   A November 1993 rating decision denied entitlement to a TDIU.  

A February 1995 VA Vocational Rehabilitation and Education (VRE) determination found the Veteran had a serious employment handicap due to his service-connected disability, but that once medically stable he could possibly pursue employment with his present educational background and skills.  He was approved for an independent living program.  A subsequent February 1995 VRE report noted a counseling psychologist concurred with the VRE officer's opinion that the Veteran was medically infeasible for vocational rehabilitation training.  It was noted he had completed an independent living program.  

A June 1995 private medical opinion found the Veteran had a chronic unstable low back condition.  It was also noted that he had developed myofascial pain syndrome and myofibrositis due to long-standing pain and denervation sensitivity.  

An August 1996 VRE report noted the Veteran's rehabilitation plan had been amended to allow him to complete a personal computing skills course.  It was noted his program goal was self-employment as a consultant.  

VA treatment records dated in June 2001 included a diagnosis of dysthymic disorder.  A GAF score of 70 was provided.  

VA examination in May 2003 included a diagnosis of dysthymia and assigned a GAF score of 60-70.  It was the examiner's opinion that the disorder was at least as likely as not aggravated by the Veteran's service-connected back disorder.  On examination it was noted he was casually dressed and groomed and was alert and oriented.  Speech was within normal limits and his mood was described as depressed.  His affect was restricted.  Thought processes were clear, coherent, goal-directed, and logical.  Thought content was free of obsessions, compulsions, delusions, or hallucinations.  There was no evidence of any major concentration or memory disturbances.  Judgment and insight were felt to be pretty good.  There was no indication of any addiction problem at that time.

An August 2004 rating decision granted service connection for dysthymia.  A 10 percent rating was assigned effective from March 25, 1990.  A January 2005 rating decision found clear and unmistakable error in the prior determination and established an effective date from April 25, 1990.

VA treatment records dated in November 2004 included a diagnosis of dysthymic disorder.  A GAF score of 70 was provided.  An October 2006 report noted he was alert and oriented times three.  There was no evidence of psychosis of mania.  Speech was normal in rate, tone, and volume.  Mood was neutral.  Affect was congruent, appropriate, and full range.  Suicidal and homicidal ideation and auditory or visual hallucination were denied.  The diagnoses included dysthymia.  A September 2008 mental status examination revealed he was alert and oriented time three.  There was no evidence of a thought disorder and his mood was neutral.  Affect was appropriate and full range.  Suicidal and homicidal ideation and auditory or visual hallucination were denied.  A January 2009 report noted a psychology consult had been requested by the Veteran's VA physician due to observations that his smoking and drinking had increased and he attributed the habits to stress associated with his complaints involving various governmental agencies.

VA mental disorders examination on January 23, 2009, included diagnoses of recurrent major depression and pain disorder due to psychological and medical causes.  A GAF score of 45 was provided.  A subsequent addendum noted psychological testing revealed a marked increase in depression.  

At his video conference hearing in May 2012 the Veteran reiterated his TDIU claim.  In a subsequent June 2012 statement he reported that he currently worked less than 20 per week on an unscheduled basis assisting other veterans in securing VA and SSA disability benefits.  

VRE records dated in August 2015 noted the Veteran's rehabilitation plan had been amended to provide for a course in computer-aided drafting and design.  The program goal was to determine feasibility for employment in the drafting field.  

VA mental disorders examination on April 17, 2017, included a diagnosis of moderate recurrent major depressive disorder.  The examiner noted the Veteran seemed to have become more depressed since his last evaluation.  He was described as bitter and angry which tended to cause him to have an edge that was insurmountable in occupational and employment situations from a social aspect.  He also struggled with severe depression due to the bitterness and anger and tended to have a great deal of difficulty motivating himself to accomplish task or interact with others.  

Based upon the evidence of record, the Board finds the evidence demonstrates that for the period from April 25, 1990, to January 22, 2009, the Veteran's service-connected dysthymia was manifested by no more than a mild impairment of social and industrial adaptability or an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.  Although the rating criteria effective prior to November 7, 1996, are generally more favorable, there is no evidence of a "definite," "considerable," or "severe" impairment of social and industrial adaptability prior to January 22, 2009.  

The medical evidence demonstrates that an August 1990 VA medical opinion found the Veteran had features of an adjustment disorder with mixed emotions features and was receiving medication, but that from a psychiatric standpoint he was competent.  VA examination in April 1992 included a diagnosis of adjustment disorder with mixed emotional features.  There was no evidence, however, of severe psychiatric symptoms that would prevent him from work at that point in time.  VA examination in September 1992 included a diagnosis of chronic depression that had existed since 1987 and found that the Veteran's mental limitations appeared to be a minimal prevention to employment at that time.

VA treatment records dated in June 2001 included a diagnosis of dysthymic disorder and provided a GAF score of 70.  A May 2003 VA examination included a diagnosis of dysthymia and assigned a GAF score of 60-70.  It was noted he was casually dressed and groomed.  His speech was within normal limits and his mood was depressed.  His affect was restricted.  Thought processes were clear, coherent, goal-directed, and logical.  Thought content was free of obsessions, compulsions, delusions, or hallucinations.  There was no evidence of any major concentration or memory disturbances.  Judgment and insight were pretty good.  VA treatment records dated in November 2004 included a diagnosis of dysthymic disorder and provided a GAF score of 70.  An October 2006 report noted the Veteran was alert and oriented with no evidence of psychosis or mania.  His speech was normal in rate, tone, and volume and his mood was neutral.  His affect was congruent, appropriate, and full range.  Suicidal and homicidal ideation and auditory or visual hallucination were denied.  The diagnoses included dysthymia.  A September 2008 mental status examination revealed no evidence of a thought disorder and his mood was neutral.  Affect was appropriate and full range.  Suicidal and homicidal ideation and auditory or visual hallucination were denied.  

The Board finds that the evidence demonstrates that the Veteran's dysthymia from April 25, 1990, to January 22, 2009, was only mildly disabling.  While the evidence clearly demonstrates he also experienced problems due to personality disorders during this period, personality disorders are not disabilities for VA compensation purposes.  See 38 C.F.R. § 3.303(c) (2017).  It is additionally significant that the January 23, 2009, VA examiner found psychological testing revealed a marked increase in depression at that time.  

The Board acknowledges that the Veteran is competent to report certain obvious symptoms of disability, but not to identify a specific level of disability.  See Jandreau, 492 F.3d at 1377; see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994).  Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical professionals who have examined him and by the available treatment records over the course of the appeal.  The overall medical findings adequately address the criteria under which the disability is evaluated.  The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology.  Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).  The preponderance of the evidence in this case is against the claim for an increased rating for dysthymia for the period from April 25, 1990, to January 22, 2009.

TDIU

A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.  38 C.F.R. § 4.16(a) (2017).  

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a) (2017).  A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19 (2017).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  TDIU is to be awarded based on the judgment of the rating agency.  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

The Veteran contends, in essence, that he is unemployable due to his service-connected disabilities.  In April 1989, he asserted that he became too disabled to work as a result of his low back and left ankle disabilities in October 1987.  He reported he had completed three years of college education and that he had past work experience as a glass cutter and as a postal carrier.  In a February 1990 application he reported he had completed four years of college education.  A June 1989 VA medical report noted a diagnosis of psychophysiological reaction with paranoid trends by history and found that at discharge the Veteran was mentally competent but unemployable.  An October 1992 rating decision granted entitlement to nonservice-connected disability pension benefits and noted the RO found him to be unemployable based upon age and disability.  An October 1991 SSA determination also found he was disabled and show a primary diagnosis of back disorder and a secondary diagnosis of affective disorder with disability beginning in October 1987.  

An August 1991 private chiropractor found the Veteran was totally disabled, but the examiner appeared to have based the opinion, at least in part, upon nonservice-connected disabilities.  A February 1995 VRE determination found he had a serious employment handicap due to his service-connected disability and that once medically stable he could possibly pursue employment with his present educational background and skills.  A subsequent February 1995 VRE report noted a counseling psychologist concurred that the Veteran was medically infeasible for vocational rehabilitation training.  An August 1996 VRE report, however, noted his rehabilitation plan had been amended to allow him to complete a personal computing skills course and identified a program goal of self-employment as a consultant.  At his video conference hearing in May 2012 and in a subsequent June 2012 statement the Veteran reported that he was working less than 20 per week on an unscheduled basis assisting other veterans in securing VA and SSA disability benefits.  There was no indication that his compensation from that was not gainful.  VRE records dated in August 2015 noted the Veteran's rehabilitation plan had been amended to provide for a course in computer-aided drafting and design (CADD).  The program goal was to determine feasibility for employment in the drafting field.  

VA medical opinions during the course of the appeal also show that an August 1990 staff psychiatrist found that, from a psychiatric standpoint, the Veteran was competent and employable.  An April 1992 examiner found there was no evidence of severe psychiatric symptoms that would prevent him from work at that point in time.  A September 1992 examiner noted the Veteran tended to overcompensation for his perceived disabilities, and that his mental limitations appeared to be a minimal prevention to employment.  

VA examination in April 2017 provided a diagnosis of residuals of injury to the lumbosacral area.  The examiner noted the Veteran was very limited in motion and had difficulty reaching anything below waist level.  He had to use a cane to help maintain balance due to leg weakness.  It was also noted that older films showed some mild degenerative changes, but that his lumbosacral strain now seemed to be quite chronic and that over time excessive wear and tear as likely as not led to further degenerative changes.  He had also developed lumbar radicular symptoms which could occur over time with degeneration of the spine.  

VA mental disorders examination on April 17, 2017, included a diagnosis of moderate recurrent major depressive disorder.  The examiner noted the Veteran seemed to have become more depressed since his last evaluation.  He was described as bitter and angry which tended to cause him to have an edge that was insurmountable in occupational and employment situations from a social aspect.  He also struggled with severe depression due to the bitterness and anger and tended to have a great deal of difficulty motivating himself to accomplish task or interact with others.  

VA records show that service connection has been established for major depressive disorder (100 percent), residuals of injury to the lumbosacral area (40 percent), residuals of a left ankle injury (20 percent), radiculopathy of the left lower extremity sciatic nerve (20 percent), radiculopathy of the right lower extremity sciatic (20 percent), radiculopathy of the left lower extremity femoral nerve (20 percent effective), radiculopathy of the right lower extremity femoral nerve (20 percent effective), tinnitus (10 percent), GERD (10 percent), and bilateral hearing loss (10 percent).  A combined service-connected disability rating of 70 percent is assigned effective from January 14, 2002.

Overall, the Board finds the evidence does not demonstrate that the Veteran's service-connected disabilities prior to April 17, 2017, rendered him unable to secure and follow a substantially gainful occupation.  His impairment due to these disabilities is shown to have been adequately evaluated during the course of this appeal.  The Veteran is shown to have completed four years of college and to have completed additional training as part of his VA vocational rehabilitation, including as part of a rehabilitation plan to assist him in obtained self-employment as a consultant and CADD training in 2015.  His skill set, work history, and education all support a finding that he was able to work in sedentary occupations and that finding employment in such a field/setting was obtainable.  As such, the Veteran is found to have been capable during the applicable period on appeal of substantially gainful employment with reasonable accommodations consistent with his service-connected disabilities.  The degree of occupational impairment due to his service-connected disabilities are found to be adequately demonstrated by the evidence and schedular ratings of record.  Entitlement to a TDIU prior to April 17, 2017, is not warranted.

As for the period from April 17, 2017, the Veteran has been assigned a 100 percent schedular rating for his psychiatric disorder.  The Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114  (s) by having an "additional" disability of 60 percent or more ("housebound" rate).  Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. However, the facts of Bradley are sufficiently differentiable from the facts of this case such that the holding in Bradley is inapplicable and any TDIU claim is in fact moot.  Specifically, the Veteran has already been granted an award of SMC based on a total scheduler rating for major depressive disorder and additional service-connected disabilities independently ratable at 60 percent or more.  As the Veteran has already been awarded SMC and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C.A. § 1114 (s), the holding in Bradley is not applicable in this case.  Any TDIU claim for the period from April 17, 2017, forward is moot.








	(ORDER ON NEXT PAGE)



ORDER

Entitlement to service connection for headaches, to include as secondary to service-connected tinnitus and lumbosacral strain, is denied.

Entitlement to service connection for hypertension, to include as secondary to service-connected dysthymia or medications taken for service-connected disabilities, is denied.

Entitlement to service connection for sleep apnea, to include as secondary to service-connected lumbosacral strain and GERD, is denied.

Entitlement to service connection for a dental disability of tooth #7 and a chronic dental condition, to include as secondary to service-connected GERD and for dental treatment purposes, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for a cervical myofascial pain disorder, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for headaches, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for blackouts, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for a shoulder disorder, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for a right leg disorder, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for a jaw disorder, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for codeine dependence, is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for an anal sphincter muscle disorder, is denied.

Entitlement to an initial rating in excess of 10 percent for dysthymia for the period from April 25, 1990, to January 22, 2009, is denied.

Entitlement to a TDIU is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs