Citation Nr: 22040331 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 17-63 852 DATE: July 14, 2022 ORDER Service connection for a neck disability is denied. Service connection for a back disability is denied. Service connection for bilateral hand tremors is denied. Service connection for a speech disorder is denied. Service connection for a disability manifested by memory loss, other than posttraumatic stress disorder (PTSD), is denied. A rating in excess of 30 percent for PTSD is denied. A total disability rating based on individual unemployability due to service connected disability (TDIU) is denied. FINDINGS OF FACT 1. The evidence does not establish that the Veteran's neck disability was incurred in service or is otherwise related to an in-service injury or disease. 2. The evidence does not establish that the Veteran's back disability was incurred in service or is otherwise related to an in-service injury or disease. 3. The evidence does not establish that the Veteran's bilateral hand tremors were incurred in service or are otherwise related to an in-service injury or disease. 4. The evidence does not establish that the Veteran's speech problems were incurred in service or are otherwise related to an in-service injury or disease. 5. The persuasive weight of the competent medical and other evidence of record reflects that the Veteran suffers from memory loss as a symptom of the already service connected PTSD. 6. The severity, frequency, and duration of the Veteran's PTSD symptomatology has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity has not been shown. 7. Although requested to do so, the Veteran has not completed and returned a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; the evidence otherwise of record is insufficient for full and proper adjudication of the claim for a TDIU. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 2. The criteria for an award of service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 3. The criteria for an award of service connection for bilateral hand tremors have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 4. The criteria for an award of service connection for a speech disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. 5. The criteria for an award of service connection for a disability manifested by memory loss, other than PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.14. 6. The criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411. 7. The issue of entitlement to a TDIU has been abandoned. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.158, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1999 to August 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2019, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a neck disability is denied. 2. Service connection for a back disability is denied. The Veteran seeks to establish service connection for disabilities of the neck and back. He asserts that these disabilities are the result of injuries in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. The Veteran underwent an examination in August 2010. At that time, the examiner appeared to diagnose back and neck disorders and related them to service. In September 2010, the examiner provided an addendum opinion clarifying the Veteran's diagnoses and their etiology. See October 2017 CAPRI. The examiner found that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine, but no diagnosis of a neck disorder. The examiner opined that the back disorder was not related to service. In rendering this negative opinion, the VA examiner explained that the in-service symptoms had resolved without residual, and that the current back disability symptoms did not manifest until after service separation. Medical records show that the Veteran has continuously sought treatment for chronic neck and back pain. The Veteran's service treatment records also show complaints of neck and back pain during service. Pursuant to the December 2019 Board remand, the Veteran was scheduled for a VA examination regarding the neck and back disabilities in January 2020. However, he failed to report. Although notified in a July 2020 supplemental statement of the case that, because of his failure to report, his claim would be decided on the evidence of record, he has not provided good cause for his failure to attend the examination or requested that a new examination be scheduled. 38 C.F.R. § 3.655(a). The Veteran's failure to report to the scheduled VA examination has precluded the creation of potentially favorable evidence of a nexus between his reported problems and active duty service. The United States Court of Appeals for Veterans Claims has indicated that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. A review of the remaining evidence of record shows treatment for the Veteran's neck and back disabilities, but includes no competent and probative evidence linking the conditions to the Veteran's active service. Stated differently, the evidence as it currently stands does not establish a link between the Veteran's neck and back disabilities and his active duty service. As such, there is an insufficient basis for concluding that the Veteran's current disabilities were incurred in service, or are otherwise related to an in-service injury or disease. Service connection for a neck or back disability is therefore denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Service connection for bilateral hand tremors is denied. 4. Service connection for a speech disorder is denied. The Veteran seeks to establish service connection for disabilities of the hands and of speech. He asserts that these disabilities are the result of complications from in service anthrax vaccination. There is some question as to whether the Veteran has a distinctly diagnosed neurological disorder accounting for his complaints of hand tremors and speech problems. He underwent an examination in August 2010 and was noted to have a history of tremors and stuttering. The examiner noted a significant family history of Parkinson's Disease, extensive polysubstance abuse, and diagnosed depressive and anxiety disorders. The examiner was essentially unable to determine the etiology of the hand and speech issues due to the comorbid factors. VA treatment records reflect complaints of tremors and stuttering with the conditions listed among the Veteran's continuing medical problems. The Veteran's service treatment records also confirm his anthrax vaccination. However, service treatment records are negative for any complaints of, or treatment for, hand tremors or speech problems during service. Pursuant to the December 2019 Board remand, the Veteran was scheduled for a VA examination regarding his bilateral hand tremors and speech disorder in January 2020. However, he failed to report. Although notified in a July 2020 supplemental statement of the case that, because of his failure to report, his claim would be decided on the evidence of record, he has not provided good cause for his failure to attend the examination or requested that a new examination be scheduled. 38 C.F.R. § 3.655(a). The Veteran's failure to report to the scheduled VA examination has precluded the creation of potentially favorable evidence of a nexus between his reported problems and active duty service. The United States Court of Appeals for Veterans Claims has indicated that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. A review of the remaining evidence of record shows treatment for the Veteran's stuttering and hand tremors, but includes no competent and probative evidence linking the conditions to the Veteran's active service. Stated differently, the evidence as it currently stands does not establish a link between the Veteran's speech problems or his bilateral hand tremors and his active duty service. As such, there is an insufficient basis for concluding that the Veteran's current disabilities were incurred in service, or is otherwise related to an in-service injury or disease. Service connection for a speech disorder or bilateral hand tremors are therefore denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for a disability manifested by memory loss, other than PTSD, is denied. The Veteran seeks to establish service connection for a disability manifested by memory loss. At present, he is already service connected for PTSD. Thus, the question for the Board's consideration is whether service connection is in order for a disability manifested by memory loss, other than PTSD. The Board finds that the evidence is persuasively against the claim. The Board acknowledges that the Veteran has self-reported memory problems. Pursuant to the December 2019 Board remand, the Veteran was scheduled for a VA examination regarding his memory loss in January 2020. However, he failed to report. Although notified in a July 2020 supplemental statement of the case that, because of his failure to report, his claim would be decided on the evidence of record, he has not provided good cause for his failure to attend the examination or requested that a new examination be scheduled. 38 C.F.R. § 3.655(a). The Veteran's failure to report to the scheduled VA examination has precluded the creation of potentially favorable evidence of a memory disorder not related to the already service-connected PTSD. The United States Court of Appeals for Veterans Claims has indicated that "[t]he duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. VA regulation provides that the evaluation of the same disability or manifestation(s) under different diagnoses is to be avoided. 38 C.F.R. § 4.14. The rationale behind this "rule against pyramiding" is that a claimant should not be compensated twice (or more) for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993); VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004). In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the United States Court of Appeals for Veterans Claims indicated that the critical element for determining whether separate ratings can be awarded under separate diagnostic codes is whether any of the symptomatology for any of the conditions at issue are duplicative of, or overlapping with, the symptomatology of the other conditions. A thorough review of the competent medical evidence of record does not reflect that the Veteran has been diagnosed with a memory disorder. Nor does it reflect that he has any other disability manifested by memory problems, the symptoms of which are not already contemplated by the rating for his PTSD. As such, the Board must conclude that the evidence is persuasively against the claim. The appeal of this issue is denied. 6. Entitlement to a rating in excess of 30 percent for PTSD is denied. The Veteran seeks a higher rating for his PTSD. He contends, in essence, that his PTSD is more severe than currently evaluated. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected PTSD is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is warranted when there is 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is 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 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. Id. A 70 percent rating is warranted where there is 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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." 38 C.F.R. § 4.126(a). In August 2010, the Veteran underwent a VA examination. The examiner concluded that the Veteran had suffered from PTSD symptoms since December 2000 while he was serving on a peace mission in Bosnia. Symptoms associated with the Veteran's PTSD included hypervigilance, exaggerated startle response, irritability/angry outbursts, nightmares, anxiety attacks, insomnia, flashbacks, concentration difficulties, and an inability to experience a full range of emotions. The examiner observed that the Veteran was dressed casually and displayed good personal hygiene. He displayed poor eye contact throughout the evaluation, but was oriented to time, place, person, and situation. He denied the experience of perceptual disturbances, and his communications were logical and coherent, but his speech displayed mild stuttering and hesitation. His thought processes were devoid of delusional or paranoid ideation, and his attention and concentration abilities were assessed as adequate, as he was able to provide a detailed and sequential personal history and performed a serial subtraction task without errors. The examiner noted that the Veteran reported the experience of concentration difficulties while in the classroom, and that his recall abilities in the remote past and recent areas were assessed as adequate. No cognitive impairments were noted, and the Veteran's intellectual abilities were assessed to fall within the average range on the basis of his vocabulary skills, abstraction abilities, and past academic achievements. There was no evidence of perceptual homicidal or suicidal ideations. The examiner noted occupational and social impairment causing mild to moderate problems, and that his impairment was mitigated by medication. The Veteran failed to report for examinations in October 2013, May 2016, and January 2020. Although notified of the consequences of his failure to report in a July 2020 supplemental statement of the case, he has not alleged nonreceipt of the notice of the examinations or otherwise provided an explanation of good cause for his failure to appear. Accordingly, his claim must be decided on the evidence otherwise of record. 38 C.F.R. § 3.655(b). The Board has reviewed the Veteran's VA treatment records throughout the appeal period, and notes there is extensive mental health treatment. He has attended group counseling, most notably for substance use education. The Board notes there were periods of incarceration in 2015 and 2016. Based on the foregoing, the Board finds that a rating in excess of 30 percent for the Veteran's PTSD is not warranted at any point pertinent to the period on appeal. The evidence fails to show that the Veteran's disability is manifested by more severe symptomatology that results in occupational and social impairment with reduced reliability and productivity due to symptoms. There is no evidence, either lay or medical, to establish the presence of symptoms of the type, duration, and severity necessary to warrant a 50 percent rating. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and the appeal of this issue must be denied. 7. Entitlement to a TDIU is denied. VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of service-connected disability, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran asserted in a January 2014 correspondence that he was no longer able to work due, at least in part, to his service-connected PTSD and other issues on appeal. In January 2020, in accordance with the VA's duties to notify and assist, the RO sent the Veteran a VA Form 21-8940 in order to obtain the information needed to adjudicate his entitlement to a TDIU. See January 2020 correspondence. To date, he has not completed and returned the form or provided the equivalent information. A VA Form 21-8940 asks a veteran which service-connected disability or disabilities prevent him from securing or following a substantially gainful occupation, and to identify the treatment he has received for the disabilities at issue. He is also asked to supply information about his employment, including dates when his disabilities affected full-time employment, the date he last worked full-time, and the date he became too disabled to work. The form further requests information regarding the veteran's employment, educational, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the veteran left his last job, and whether he has attempted to obtain employment since he became too disabled to work. Although the record contains some information regarding the Veteran's employment history, he has not provided the information necessary for full and proper adjudication of his entitlement to a TDIU claim. The evidence does not completely reflect, for example, his educational and occupational history. The Board is presented with an insufficient evidentiary record, made so by his failure to cooperate in completing the VA Form 21-8940 or providing the equivalent information. Under the circumstances, proper adjudication of the matter on the merits is not possible. The duty to assist is not a one-way street. A veteran may not passively wait for assistance when his cooperation is needed for evidentiary development critical to a claim for VA benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). When evidence requested in connection with a claim for increase is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a). Because the evidence of record is insufficient to decide the TDIU issue, and the Veteran did not respond to the January 2020 correspondence from the AOJ, the issue of his entitlement to a TDIU is deemed abandoned. The appeal must be denied. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.