Citation Nr: 1806730	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO. 13-36 207	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a compensable disability rating for bilateral hearing loss disability.

2. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).

3. Entitlement to service connection for hypertension.

4. Entitlement to service connection for obstructive sleep apnea (OSA).

5. Entitlement to service connection for a skin disorder, to include as due to exposure to herbicides.

6. Entitlement to service connection for muscular atrophy.

7. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or housebound status.

8. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Colin Kemmerly, Attorney at Law


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1968 and from March 2003 to September 2004 with additional National Guard service.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012, February 2012, July 2014, and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The issue of entitlement to service connection for stroke and its residuals, to include as secondary to service-connected disabilities has been formally raised by the Veteran in a February 2015 VA Fully Developed Claim (VA Form 21-526EZ), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to service connection for a skin disorder, to include as due to exposure to herbicides; entitlement to service connection for muscular atrophy; entitlement to SMC based on the need for regular aid and attendance of another person or housebound status; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. VA audiometric testing in May 2014 revealed a 23 decibel puretone threshold average in the right ear and 45 decibel puretone threshold average in the left ear. Speech discrimination was measured at 96 percent in the right ear and 94 percent in the left ear.

2. VA audiometric testing in March 2015 revealed a 26 decibel puretone threshold average in the right ear and 49 decibel puretone threshold average in the left ear. 

3. The Veteran's PTSD has not been manifested by occupational and social impairment with deficiencies in most areas at any point during the appeal period.

4. The Veteran's hypertension did not have its onset in during a period of active duty, to include, was not manifested to a compensable degree within one year of his active duty service that involved 90 days or more, and is not otherwise related to any period of service.

5. The Veteran's current obstructive sleep apnea was not incurred during active duty service and it is not otherwise related to active duty service.


CONCLUSIONS OF LAW

1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code (DC) 6100 (2017).

2. The criteria for disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, DC 9411 (2017).

3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

4. The criteria for service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In September 2016, the Board remanded the claims to associate any potentially outstanding VA treatment records and to afford the Veteran a VA examination to determine the current severity of his PTSD. The Veteran was afforded a VA examination in February 2017. In a June 2017 statement, the Veteran's representative contends that the February 2017 VA examiner failed to review the Veteran's claims file thus resulting in a violation of Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the representative asserts that the examiner failed to review September 2015 and February 2015 medical opinions regarding the relationship between the Veteran's service connected PTSD and the occurrence of a cerebral vascular accident.

VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination). The Board may assume that a VA medical examiner is competent. See Cox, 20 Vet. App. at 569; Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The opinions provided include a discussion of the facts in this case, medical principles, and thorough rationale. The VA examiner specifically indicated that she reviewed the Veteran's "VA e-folder (VBMS or Virtual VA)" and "CPRS." The Veteran has not offered competent and probative evidence in support of his assertions to persuade the Board that the February 2017 VA examiner was not competent to render the opinions sought or failed to review the Veteran's claims file. 

The Board notes that the Veteran is not in receipt of service connection for the cerebral vascular accident and the issue of entitlement to service connection for a cerebral vascular accident and its residuals was not adjudicated by the AOJ and therefore has been referred for AOJ adjudication. Further, the issues of TDIU and SMC are inextricably intertwined with the issue of entitlement service connection for cerebral vascular accident and are remanded below. The Veteran is not prejudiced in regard to these claims as a final determination has not been made. Thus, the Board finds the opinion provided in February 2017 to be adequate and there is no Stegall violation.

VA has satisfied its duties to notify and assist and the Board may proceed with appellate review.

Increased Ratings - Generally

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017).

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 311. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Increased Rating - Bilateral Hearing Loss

Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI in DC 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule establishes eleven Roman numeral auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz) and organic impairment of hearing acuity (measured by controlled speech discrimination test; Maryland CNC). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of decibel loss as measured by puretone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id. 

Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86 (2017). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). 

The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See id.

The Veteran contends that an increased disability rating for bilateral hearing loss is warranted because his hearing disability is more severe than the currently-assigned noncompensable rating.

In May 2014, the Veteran underwent a VA audiological examination, which showed that the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
20
20
20
30
23
LEFT
30
45
45
60
45

Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.

As noted above, Table VI in 38 C.F.R. § 4.85 combines the puretone average and the speech recognition scores to produce a numeric designation for each ear, which is inserted into Table VII in 38 C.F.R. § 4.85 to determine the correct disability level. The right ear had a puretone average of 23 decibels and a speech recognition score of 96 percent. It received a designation of I under Table VI. See 38 C.F.R. § 4.85, Table VI. Because the left ear had a puretone average of 45 decibels and a speech recognition score of 94 percent, it received a designation of I under Table VI. Table VIa will not be taken into consideration for either ear because the puretone threshold in decibels are not above 55 decibels for each of the frequencies 1000, 2000, 3000, and 4000 Hertz. See 38 C.F.R. § 4.86(a). The intersection of row I and column I for each ear on Table VII established that under the May 2014 VA examination the Veteran's hearing loss is entitled to a zero percent or a noncompensable disability rating. See 38 C.F.R. § 4.85, DC 6100.

The May 2014 VA examination report reflects that the Veteran reported that he "can't hear" as the overall functional impairment. 

In March 2015, the Veteran underwent a VA audiological examination which showed that the Veteran's puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
25
20
25
35
26
LEFT
35
50
45
65
49

The examiner noted in her report that the use of the word recognition score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. that make the combined use of puretone average and word recognition score inappropriate.

Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman number designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.86(c). The use of Table VIa is appropriate in this exact situation. The right ear had a puretone average of 26 decibels; therefore, it received a designation of I under Table VIa. See 38 C.F.R. § 4.85. Because the left ear had a puretone average of49 decibels, it received a designation of III under Table VIa. See id. The intersection of row I for the better ear and column III for the poorer ear on Table VII established that under the March 2015 VA examination, the Veteran's hearing loss is entitled to a zero percent or a noncompensable disability rating. See id.

In the March 2015 VA examination report, the examiner noted that the Veteran reported that he does hear or understand much as the overall functional impairment. 

The Veteran is competent to describe the effects of his hearing loss on his daily functioning, such as having difficulty hearing or understanding, as described in the May 2014 and March 2015 VA examination reports. See Layno v. Brown, 6 Vet. App. 465, 469. The disability ratings are derived by a mechanical application of the rating schedule which incorporates both the puretone threshold average and the speech recognition ability percentage. Lendenmann, 3 Vet. App. at 349. The Veteran's May 2014 and March 2015 VA examinations both resulted in a noncompensable or zero percent disability rating. The Board has considered the functional impact of the Veteran's disability and the results of the audiological examinations of record. Mechanical application of the Rating Schedule to the audiometric findings does not establish entitlement to a compensable disability rating at any point of the appeal period.

The preponderance of the evidence is against the claim for a higher rating for bilateral hearing loss. The impairment associated with this disability is contemplated by the rating criteria, which consider the average impairment resulting from a service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Absent audiometric and speech discrimination scores showing that the Veteran's hearing loss disability meets the schedular criteria for an increased rating; his reported functional impairment does not warrant a higher rating than is already assigned. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349. Thus, the benefit-of-the-doubt rule does not apply, and entitlement to a compensable disability rating for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55 (1990).

Increased Rating - PTSD

PTSD is evaluated under the General Rating Formula Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is assigned for PTSD manifested by 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- 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, and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent disability rating requires 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 work-like setting); or inability to establish and maintain effective relationships. 

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

A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). 

The Board notes that the use of the GAF scale has been abandoned in the DSM-V because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, however, DSM-IV was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. 

GAF scores ranging between 61 and 70 reflect some 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 functioning pretty well, and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). 

The Court in Mauerhan v. Principi stated that "when evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupation and social impairment." See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational and social impairment equivalent to that which would be caused by those listed in the rating criteria the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 442.

The Veteran contends that his PTSD should be rated higher than the currently-assigned disability rating. Specifically in a statement dated August 2011, the Veteran asserted that his PTSD symptoms more accurately reflect a 70 percent rating and that not every symptom listed in the 70 percent rating schedule is necessary to grant a higher evaluation. The Board discusses herein the reasons for finding a 70 percent rating is not warranted.

The Veteran was afforded a VA examination in April 2011 for his PTSD. At the examination, the Veteran was described to be clean and casually dressed. The Veteran's attention was intact and he had a cooperative and attentive attitude. His affect was flat, his mood was good, his speech soft or whispered but clear and coherent, and his psychomotor activity was lethargic. The VA examiner indicated that the Veteran was oriented to person, time, and place with no delusions or hallucinations. The examination report also reflects that the Veteran was of average intelligence and understood the outcome of his behavior. The Veteran had good impose control, was able to maintain minimum personal hygiene, and did not have problems with activities of daily living. 

The Veteran reported that reported that he remained married to his wife and described the relationship as "good, she puts up with me." He also reported that he did not communicate with his son. The Veteran stated "I just come to Ms. R[]'s meetings. Other than that I just stay around the house and don't socialize." The Veteran reported that he hunted and walked for leisure. He reported no history of suicide attempts or violence/assaultiveness or homicidal thoughts. The VA examiner found that in terms of social functioning, the Veteran appeared to have impairment of that area but the level of impairment was unclear. The examiner indicated that much of the Veteran's current difficultly appears to have been related to depression rather than any PTSD symptoms.

The examiner found that based on the Veteran's history of being able to function well enough to retire from the National Guard after 24 and one-half years of service and from his civilian job after 38 years of employment, the Veteran's occupational functioning did not appear to have been significantly impaired by PTSD symptoms. 

The Veteran was determined to be capable of managing financial affairs and stated himself that he was capable of managing his personal financial affairs with the assistance of his wife. The examiner indicated that nothing in the examination suggested otherwise. The examiner concluded that there was not a total occupational and social impairment or even reduced reliability and productivity due to the Veteran's PTSD symptoms. The examiner indicated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. The Veteran reported efforts to avoid activities, places, or people that arouse recollections of the trauma, difficulty sleeping and sleep disruption, irritability, and diminished interest or participation in significant activities. The VA examiner confirmed a diagnosis of PTSD and the Veteran was assigned a GAF score of 62. Importantly, the examiner noted in his report that due to the Veteran's presentation on the evaluation which suggests over endorsement of symptoms and poor effort, it was difficult to make an accurate estimation of his functioning. The examiner specifically stated that this suggestion of over endorsement by the Veteran was noted in a previous Compensation and Pension (C&P) examination.

The examiner explained that the Veteran was viewed as putting forth very poor effort, similar to previous C&P examinations. The examiner noted that the Veteran had difficulty recalling historical information about himself and that he could only recall 2 out of 3 words immediately, even with 2 trials. The Veteran was able to immediately state 3 words after 3 trials and was able to recall 1 out of 3 words following a brief delay with intervening task. The Veteran was able to repeat 1 digit forward. When presented with 2 or more digits, he would only say 1 digit correctly. The examiner indicated that it did not appear to be a valid measure of his true memory abilities. The examiner also indicated that the Veteran's presentation during the examination was much different than those described in his treatment notes. She cited to an September 2010 VA medical record which reflects that during an individual therapy appointment, the Veterans mood was described as euthymic with good eye contact; numerous notes that indicate the Veteran was an active participant in group therapy; and psychiatry notes that indicate better cognitive/ memory abilities than those presented during examination. The examiner found that the validity of the examination was highly suspect and that overall there was no evidence that there had been an increase in PTSD symptoms since the Veteran's last examination

The Veteran was afforded another VA examination in September 2011 with the same VA examiner from April 2011. The Veteran was diagnosed with PTSD under DSM-IV criteria. During the VA examination, the Veteran stated that he remained married and indicated that his wife still got mad at him a lot. He answered "nothing," when asked about his social activities, hobbies, and recreation. The examiner noted that the Veteran was capable of managing his financial affairs. The Veteran described his mental health symptoms as "seems like I stay depressed real bad and on edge. At this least little thing, I want to blow up. I can't let things go. I feel like somebody is watching me sometimes. I still have nightmares."

During the September 2011 VA examination, the Veteran wore dark sunglasses and a hat pulled low over his eyes. The examiner indicated that the Veteran's hygiene was very poor; specifically the Veteran was malodorous to the point of being almost unbearable. The examiner noted that a review of the Veteran's treatment records revealed no prior problems with hygiene. When asked by the examiner how long it had been since he last bathed prior to the examination, the Veteran replied, "a couple of days ago." The Veteran stated that he had not felt like bathing but indicated that he was physically capable of completing all tasks related to hygiene. The examiner described the odor as more of a feces smell than a body odor smell.

The Veteran reported that he would not be able to communicate with others at work and "can't stand pressure" as the reasons why he felt that he was unemployable. However, the examiner noted that the Veteran was able to communicate effectively, able to understand, and carry out at least simple instructions. The examiner found that the Veteran's thoughts were logical and goal-directed with no evidence of formal thought disorder. The Veteran's judgment was grossly intact but did appear to have mild to moderate problems with immediate and short-term memory and might have lacked motivation. The examiner opined that these impairments, however, were not so severe that the Veteran would be incapable of being employed solely due to symptoms of PTSD or mood disorder.

The examiner noted that due to the Veteran's presentation on the evaluation which suggests over endorsement of symptoms and poor effort, it was difficult to make an accurate estimation of the Veteran's functioning. She emphasized that it was noted in her previous examination as well. The examiner determined that the Veteran's occupational functioning did not appear to have been significantly impaired by any PTSD symptoms based on the Veteran's history of being able to function well enough to retire from the National Guard after 241/2 years of service and from his civilian job after 38 years of employment. In regard to the Veteran's social functioning, the examiner stated that the Veteran appeared to have impairment in this area but the level of impairment is unclear and appeared to be related to depression rather than an increase in PTSD symptoms. The examiner indicated that the Veteran did not appear to be unemployable and there was no significant change in symptoms since the last examination. 

The Veteran was examined again for his PTSD in July 2015. The examiner confirmed a diagnosis of PTSD but explained the current diagnosis was made based on the Veteran's history of previous C&P diagnosis of PTSD and his symptoms reported during the clinical interview. The examiner indicated that the Veteran completed the Trauma Symptoms Inventory (TSI) as a part of this evaluation. The examiner noted that the inventory is an objective testing measure with well documented validity scales and questions associated with depression and anxiety are imbedded in the testing which make it difficult to ascertain the purpose of each question. The Veteran's test results were found to be invalid by the examiner as a result of over-endorsing symptoms and endorsement of symptoms that are not typical of PTSD. The examiner explained that the Veteran's score for ATR was significantly clinically elevated (ATR > 100) which rendered his response pattern invalid and suggestive of exaggeration or feigning of symptoms. He further stated that there was no objective evidence to support the symptoms of or diagnosis of PTSD and that the Veteran's TSI was invalid at his last C&P examination as well. The examiner added that a review of the Veteran's mental health records reveal that the Veteran had been treated at the Mobile VA outpatient clinic for symptoms associated with PTSD and alcohol dependence since September of 2009, however the diagnosis of PTSD was not added to his active problem list until August 2013.

The examiner indicated that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Symptoms noted during the examination include depressed mood, anxiety, chronic sleep impairment, impairment of short and long term memory, difficulty in understanding complex commands, and disturbances of motivation and mood. 

The examination report reflects that the Veteran arrived early for the examination and completed requested objective testing with the assistance of his wife. The veteran was clean and well-groomed and casually dressed. Upon a mental status examination, the Veteran was alert and oriented in all spheres, cooperative, appeared sincere, and was engaging during the session. The Veteran maintained good eye contact, his speech was spontaneous with normal rate, rhythm, tone and volume. His thought process was linear, logical, and goal directed while thought content was unremarkable. The Veteran's memory and cognition were grossly intact and there was no evidence of auditory or visual hallucinations. The examiner indicated that there was no observable impairment in attention, concentration, or memory. Judgment, insight and impulse control were also intact. As noted above, the examiner emphasized the invalid objective test results of the examination due to the Veteran's over-endorsing of symptoms and endorsement of symptoms that are not typical of PTSD which were consistent with the significantly exaggerated test results of the Veteran's previous C&P examinations. 

The examiner stated that the Veteran's over-endorsement of symptoms and poor effort made it difficult to provide an accurate of the current functioning level. Further, the examiner found that the Veteran was significantly functionally impaired but it was due to his December 2014 stroke and the resulting left hemiplegia and cognitive impairment.

The Veteran was afforded another VA examination in February 2017. The Veteran was casually dressed with good grooming and hygiene and interacted in a calm manner but with flat affect. The examiner stated that the Veteran did not appear unusually anxious and his speech was slow and minimal but easily understood. Further, the examiner indicated that there were no signs of psychosis of unusual behavior.

The Veteran reported that he had good days and bad days and had to take medicine to sleep. He reported nightmares and crying spells when he thought about how his "buddy was killed." The Veteran's wife assisted him with completion of assessment measures. The examiner indicated on face valid, self-report measures the Veteran endorsed symptoms of depression and PTSD.

The examiner indicated that the Veteran was significantly functionally impaired but it was due to the Veteran's December 2014 stroke and the resulting left hemiplegia and cognitive impairment. The examiner stated that it appeared to be no evidence of a change in PTSD symptoms since his last examination. The examiner opined that the Veteran's PTSD would result in occasional reduction in productivity and reliability in a stressful, work setting where high productivity is required. The examiner explained that this is due to the Veteran's problems with irritability, impaired sleep, anxiety, and anhedonia but noted that PTSD symptoms did not result in significantly impaired judgment or a thought disorder. The examiner also determined that the Veteran's PTSD symptoms did not affect his ability to communicate effectively and follow, at least, simple instructions and complete routine tasks.

The weight of the evidence demonstrates that throughout the appeal period, the criteria for an increased disability rating in excess of 50 percent for the Veteran's service-connected PTSD have not been met. Specifically, the Veteran's PTSD has not been manifested by symptomatology more nearly approximating 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 work-like setting); or inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The Board has fully considered the frequency, severity, and duration of all of the Veteran's psychiatric symptoms with respect to their effect on other areas of overall occupational and social functioning. 38 C.F.R. § 4.126(a).

The symptoms exhibited by the Veteran are contemplated by the 50 percent disability rating in effect, which encompasses 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- 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, and difficulty in establishing and maintaining effective work and social relationships. The April 2011 VA examiner indicated that the Veteran's PTSD symptoms were not severe enough to result in reduced reliability and productivity in occupational and social functioning. 

The preponderance of the evidence is against a finding that the Veteran's PTSD resulted in occupational and social impairment, with deficiencies in most areas. The Veteran consistently denied suicidal or homicidal ideation, delusions, and hallucinations. VA examiners have consistently documented orientation in all spheres, an ability to perform activities of daily living including maintaining minimal personal hygiene, appropriate behavior, intact memory processes, and ability to manage his own finances. In addition, VA examiners have documented no gross impairment in thought process or communication. The Veteran maintains a relationship with his wife. The VA examination reports are unremarkable for any risk of self-harm. The Veteran has not been hospitalized for mental health and the record does not show that the Veteran has any intent of self-harm or harm to others. For example, a September 2016 VA medical record reflects the Veteran's wife reported that things were not going well and the Veteran threatened to hit her or have her killed, however the Veteran indicated that he had no intent to harm her and denied thoughts or plans to harm himself or anyone. A July 2014 VA medical record reveals that the Veteran enjoyed attending church services regularly and accompanied a friend to his work on occasion. Furthermore, numerous VA medical records indicate that the Veteran was an active participant in group PTSD therapy. During the April 2011 VA examination, the Veteran reported that he liked the group and that he was able to talk to them since they understood better.

An August 2014 VA medical record reveals a VA psychologist's opinion that the Veteran was unemployable at the time due to poor frustration tolerance, interpersonal avoidance, depressive apathy and poor concentration which were all PTSD-related symptoms. The evidence has shown that the Veteran has worked full time for 38 years until his retirement due to age. Prior to the Veteran's cerebral vascular accident in December 2014, the Veteran was able to complete yard work, shared responsibilities of cleaning the house with his wife, and did not require any assistance with most of the basic activities of daily living as reflected in a July 2014 VA medical record. An October 2015 VA medical record indicates that the Veteran's memory became significantly more impaired with frequent forgetfulness and he was more depressed due to left sided paralysis

The Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board notes that VA examiners have consistently questioned the validity of the Veteran's objective test results during the VA examinations provided during the appeal period due to suggestions of over endorsement of symptoms and poor effort by the Veteran. 

Therefore, in consideration of the frequency, severity, and duration of the Veteran's symptoms and their effect on the Veteran's overall occupational and social functioning, the Board finds that the Veteran's PTSD does not manifest in occupational and social impairment with deficiencies in most areas and a 70 percent disability rating is not warranted. The April 2016 VA examiner indicated that the Veteran had symptoms which cause occasional decrease in work efficiency and intermittent periods of inability to perform occasional tasks due to PTSD which is specifically contemplated in a 30 percent disability rating. Furthermore, the April 2011 VA examiner indicated the Veteran's occupational functioning did not appear to have been significantly impaired by PTSD symptoms and the Veteran's difficulty appeared to be related to depression rather than any increased PTSD symptoms. 

During the September 2011 VA examination, the Veteran had symptoms of depressed mood, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner indicated that occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation best summarized the Veteran's level of occupational and social impairment. The February 2017 VA examiner made similar findings. The July 2015 VA examiner found that although a mental condition had been formally diagnosed, symptoms were not severe enough to either interferer with occupational social functioning or to require continuous medication. Throughout the appeal period, the Veteran's PTSD is contemplated by the assigned 50 percent rating which approximates occupational and social impairment with reduced reliability and productivity.

Because the Board finds that the Veteran's PTSD symptoms do not meet the criteria for a 70 percent rating, it also finds that the symptoms do not meet the criteria for a 100 percent rating as well, as the preponderance of the evidence is against a finding of total occupational and social impairment. 

For these reasons, the Board finds the preponderance of the evidence weighs against entitlement to an increased disability rating in excess of 50 percent for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55 (1990).

Service Connection - Generally

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). 

Hypertension

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See Note (1) to 38 C.F.R. § 4.104, DC 7101. For the purposes of 38 C.F.R. § 4.104, the term hypertension means that the diastolic blood pressure is predominately 90mm. or greater and isolated systolic hypertension means that the systolic blood pressure is predominately 160mm. or greater with a diastolic blood pressure of less than 90mm.

The Veteran has a current diagnosis of hypertension as reflected in VA medical treatment records, including an October 2016 record which shows hypertension as an active problem since September 2009.

The Veteran's hypertension pre-existed his second period of active duty service (March 2003 to September 2004). Following an April 2001 periodic medical examination performed when the Veteran was in the Alabama Army National Guard, the examiner noted a history of hypertension that was controlled on one medication under summary of defects and diagnosis. A cardiovascular screening was favorable and the Veteran was noted to smoke cigarettes and cigars; one pack a day for 15 years. In the accompanying Report of Medical History, the Veteran indicated that he was taking As Tel [sic] 5mg for high blood pressure and checked "yes" when asked if he had or ever had "high or low blood pressure." In a March 2003 health questionnaire for dental treatment, the Veteran checked "high blood pressure" as a condition that applied to him. He explained that he took a 5mg tablet for high blood pressure. 

National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of his/her state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. 

Although the Veteran was shown to have high blood pressure as early as April 2001 as a member of the Alabama Army National Guard, the Veteran was not eligible for Veterans benefits for such period of duty as it is not shown that the Veteran was ordered into Federal service by the President of the United States at the time.

The Board also finds that the preponderance of the evidence is against a finding that the Veteran's hypertension was aggravated during his second period of active duty service. Service treatment records are silent for any treatment for hypertension during this period of service. Further, in a July 2004 DD Form 2796 Post Deployment Questionnaire, the Veteran indicated that his health stayed about the same or got better and was seen zero times in sick call during the deployment.

The preponderance of the evidence is against a finding that the Veteran's hypertension was incurred during his first period of service or manifested to a compensable degree within a year from his September 19698 separation. The Veteran's service treatment records from his first period of service from September 1966 to September 1968 are silent for any diagnosis or treatment of hypertension or symptoms of high blood pressure. For example, an October 1966 dental patient medical history questionnaire from the Veteran's service treatment records indicates that the Veteran denied any treatment for high blood pressure. The Veteran's August 1968 separation examination revealed no complaints, diagnosis, treatment, injury or events related to hypertension and the clinical evaluation was normal for all bodily systems including the heart and vascular system with a blood pressure within a normal range of 126/86 (systolic/diastolic). Further, in the Report of Medical History accompanying the separation examination, the Veteran indicated that he was in "good" health and specifically denied any heart trouble; palpitation or pounding heart; and high or low blood pressure. 

Medical examinations provided during National Guard duty including December 1982, March 1989, and February 1993 (except for abdomen and viscera) revealed normal clinical evaluations including for the heart and vascular system. Blood pressure readings during the examinations were 128/44; 126/92; and 140/95, respectfully. In the Report of Medical History accompanying the examinations, the Veteran indicated that his health was "all right," was in "good" health and was taking no medication. He specifically denied any heart trouble; palpitation or pounding heart; and high or low blood pressure in each of the Reports of Medical History. The medical and lay evidence does not show that the Veteran's hypertension had its onset during his period of service from September 1966 to September 1968 or manifested to a degree of 10 percent disabling or more within one year from his September 1968 separation from service, and a finding that it is related to service, to include on a presumptive basis, is not warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). 

The Board has reviewed the Veteran's medical records for any indication that his hypertension could have been caused by or was a result of active duty service and finds that the preponderance of the evidence is against a relationship. The Veteran does not contend that a specific in-service injury or event that caused his hypertension nor does he offer a medical opinion from a qualified medical professional providing a nexus between his hypertension and service. 

The Veteran has attempted to establish a nexus through his own lay assertions that his hypertension was caused by or related to service; however, the Veteran has not demonstrated competency to offer opinions as to the etiology of his hypertension and has not offered probative and competent medical evidence to support his assertions on medical etiology. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert, 21 Vet. App. at 462. Hypertension requires specialized training for determinations as to diagnosis and causation, therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his hypertension and service. 

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his hypertension, the Board finds that the Veteran's hypertension disability was not related to active service as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for hypertension is not warranted.

The preponderance of the evidence is against the claim of service connection for hypertension, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert, 1 Vet. App. at 55.

Obstructive Sleep Apnea

The Veteran contends that service connection for obstructive sleep apnea (OSA) is warranted because it was caused by or otherwise related to service. In a December 2005 statement, the Veteran asserted that he had problems sleeping since he returned from Baghdad.

The Veteran has a current diagnosis of OSA. A March 2014 VA medical record, a neurology consultation, reflects that the Veteran was referred to evaluation his memory loss. The Veteran was noted to take multiple naps during the day and snore at night. It was noted that the Veteran used to drink alcohol when he returned from Iraq and that he served in the Vietnam War. The physician suspected sleep apnea and a follow-up for a sleep study was planned. A July 2014 VA medical record from a pulmonologist indicates that a sleep study was reviewed and a Continuous Positive Airway Pressure (CPAP) machine was ordered. The Veteran's VA active problem list includes sleep apnea from July 2014.

The Board has reviewed the record, including service treatment records and post-service medical records for any indication that OSA could have been caused by or was a result of active duty service and finds that the preponderance of the evidence is against such a relationship. The Veteran's service treatment records from both periods of service; September 1966 to September 1968 and from March 2003 to September 2004 are silent for any diagnosis, symptoms, or treatment of a sleep disorder. In the August 1968 Report of Medical History accompanying his service separation examinations, the Veteran specifically denied that he had "been a sleepwalker" and "frequent trouble sleeping." The Veteran also reported the same in Reports of Medical History from December 1982, March 1989, May 1993, May 1996, and April 2001. In a July 2004 DD Form 2796 Post Deployment Questionnaire, the Veteran indicated that his health stayed about the same or got better and was seen zero times in sick call during the deployment. The Veteran answered "no" when asked if he had any medical problems that developed during the deployment and if he had concerns about possible exposures or events during the deployment that may affect his health. The Veteran answered that his health in general was "very good."

The Veteran has not offered probative and competent medical evidence establishing a nexus between his OSA and service. Lay evidence may be competent to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his OSA, the Board finds that his current OSA was not incurred in service and it is not otherwise related to active service. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen, 564 F.3d at 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan, 573 F.3d at 1286. Accordingly, service connection for OSA is not warranted.

The preponderance of the evidence is against the claim of service connection for obstructive sleep apnea, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert, 1 Vet. App. at 55.


ORDER

A compensable disability rating for bilateral hearing loss is denied.

A disability rating in excess of 50 percent for PTSD is denied.

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for obstructive sleep apnea is denied.


REMAND

A review of the record discloses further development is needed with respect to the Veteran's claims of entitlement to service connection for a skin disorder, to include as due to exposure to herbicides; entitlement to service connection for muscular atrophy; entitlement to SMC based on the need for regular aid and attendance of another person or housebound status; and entitlement to a TDIU.

Skin Disorder

The Veteran asserts that he has a skin disorder that was incurred in-service or otherwise related to service, to include as due to exposure to herbicide agents (Agent Orange). A review of his service treatment records indicates that he was treated for a rash in service in August 1968. Military personnel files indicate that the Veteran served in Vietnam from March 1967 to March 1968, therefore exposure to herbicides is presumed. The Veteran has shown an in-service occurance of a rash and is presumped to be exposed to herbicide agents; therefore the Board finds that a VA examination is necessary to determine if the Veteran has a current skin disorder and the etiology, if applicable.

Muscular Atrophy

The Veteran contends that service connection for muscular atrophy is warranted because it is a result or residual of a stroke which should be service-connected as secondary to his PTSD. VA medical records indicate that the Veteran had a stroke (cerebral vascular accident) on December 13, 2014 and subsequently had left-sided hemiparesis (muscular atrophy). The Veteran was provided an examination for PTSD in February 2017. The VA examiner stated that the Veteran was significantly functionally impaired and that it was due to the Veteran's December 2014 stroke and the resulting left hemiplegia and cognitive impairment.

The Veteran made a formal claim of entitlement for a stroke and residuals on VA Form 21-526EZ in February 2015, however the claim has not be adjudicated by the AOJ. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).

As the Veteran is contending that service connection for muscular atrophy is warranted on a secondary basis to a claimed disability of a stroke, which a formal claim has been made but not yet adjudicated, the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Board consideration of the merits of the Veteran's claim for service connection for muscular atrophy is deferred pending any necessary development and adjudication of issues of entitlement to service for a stroke. 

Entitlement to SMC and TDIU

SMC is payable under 38 U.S.C. § 1114(l) if, as a result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017).

TDIU may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341(a), 4.16(a) (2017).

The issue of entitlement to service of a stroke is referred herein, and the issues of entitlement to service connection for a skin disorder and entitlement to service connection for muscular atrophy are remanded herein for further development and adjudication by the AOJ and therefore will be pertinent to the Veteran's claims for SMC and TDIU. As determination with respect to the aforementioned claims may have an impact upon consideration of entitlement to SMC and TDIU, the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris, 1 Vet. App. 180. As such, Board consideration of the merits of the Veteran's SMC and TDIU claims are deferred pending any necessary development and adjudication of issues of entitlement to service of (1) a stroke; (2) a skin disorder; and (3) muscular atrophy.

Accordingly, the case is REMANDED for the following action:

1. Perform any development as determined necessary and adjudicate the Veteran's claim for entitlement to service connection for stroke and residuals, to include as secondary to service-connected disabilities, referred herein.

2. Schedule the Veteran for a VA examination for his claimed skin disorder, to determine the nature, extent, and etiology of the claimed disorder. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. 

The examiner is informed that the Veteran's dates of active duty service are September 1966 to September 1968 and March 2003 to September 2004; and that he served in Vietnam from March 1967 to March 1968 and is therefore presumed to have been exposed to herbicide agents.

The examiner's attention is drawn to an August 1968 service treatment record reflecting an in-service complaint and treatment for a rash. See VBMS entry with document type entitled "STR- Medical," received 09/09/2014, on p. 6.

The examiner is asked to answer the following question: Whether the Veteran has a current diagnosis of a skin disorder? If so, is it at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service, to include as due to exposure to herbicides? The examiner is to specifically address the August 1968 service treatment record reflecting an in-service complaint and treatment for a rash.

A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3. After the above is complete, conduct any additional development as needed, and readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 


The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs