Citation Nr: 1648554	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  04-04 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for a back injury, to include a scar, as a result of an automobile accident.

2.  Entitlement to a rating in excess of 70 percent for generalized anxiety disorder with posttraumatic stress disorder (PTSD) from July 18, 2011 to May 26, 2014, and in excess of 50 percent since May 27, 2014. 

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


REPRESENTATION

Veteran represented by:	George T. Sink, Attorney


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel
INTRODUCTION

The Veteran had active military service from May 1975 to May 1979, February 2003 to June 2004, and from June 2006 to September 2007, to include service in Kuwait.  He was a member of the Army National Guard from December 1979 to July 2010.    

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

In a February 2011 statement, the Veteran clarified that he was not claiming service connection for internal bleeding associated with his back injury, but rather for the residual scar.  The issue has been rephrased accordingly.  

In January 2010, July 2011, and October 2012, the issue of entitlement to service connection for a back disability was remanded for further development, which has been substantially accomplished.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  It now returns to the Board for appellate review.  

The Veteran requested a hearing with a member of the Board, but this request was later withdrawn by his attorney.  There is currently no outstanding hearing request.  

The Board recognizes that the Veteran has filed a notice of disagreement concerning denial of increased ratings for urticaria and left knee meniscus tear and anterior cruciate ligament tear, status post arthroscopy, meniscectomy and ligament repair with residual osteoarthritis.  Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO.  While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal.  Action by the Board at this time may serve to actually delay the RO's action on that appeal.  As such, no action will be taken by the Board at this time, and the issues presently before the RO pertaining to urticaria and left knee disability will be the subject of a later Board decision, if ultimately necessary.

The Court has also held that a claim for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case the Veteran asserts he is unemployable in part due to his generalized anxiety disorder with PTSD.  As such, the issue of entitlement to a TDIU is properly before the Board.

The issues of entitlement to an increased rating for generalized anxiety disorder with PTSD and a TDIU are addressed in the REMAND section below and are remanded to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

A back injury, to include a scar, as a result of an automobile accident, is not etiologically related to a period of service, to include travel directly to or returning directly from such service.


CONCLUSION OF LAW

The criteria for service connection for a back injury, to include a scar have not been met.  38 U.S.C.A. §§ 101, 105(a), 106(d), 1110, 1131 (West 2014); 38 C.F.R. 
§§ 3.6, 3.303 (2016).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015).  Compliant notice was provided in a March 2001 and January 2010 letters.  To the extent that this notice is deficient in any way, the Board notes that the Veteran has demonstrated actual knowledge of how to substantiate his claim through his statements and the statements and arguments presented by his attorney.  Therefore, there is no prejudice in rendering a decision on this appeal.  

VA has also fulfilled its duty to assist.  VA obtained the Veteran's service treatment records and identified post-service treatment records and records from the Social Security Administration.  During the appeal period, VA provided the Veteran with relevant examinations.  The examiners reviewed the Veteran's claims file, considered the Veteran's reported history, and provided an analysis to support the conclusions reached.  Therefore, there is adequate medical evidence of record to allow the Board to make an informed decision.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  By obtaining service records, VA records, and medical opinions, the AOJ complied with the Board's prior remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Given the above, no further action related to the duties to notify and assist is required in this case.  

II. Legal Criteria

For VA compensation purposes, service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6.  Active duty is full time duty in the Armed Forces other than ACDUTRA.  Id.  With regard to National Guard service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law.  Id.  Inactive duty training is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law.  Id. 

For purposes of determining active military service for VA compensation, any individual who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA: and who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA, as the case may be; shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be, at the time such injury or covered disease was incurred.  In determining whether or not such individual was so authorized or required to perform such duty, and whether or not such individual was disabled or died from injury or covered disease so incurred, the Secretary of VA shall take into account the hour on which such individual began so to proceed or to return; the hour on which such individual was scheduled to arrive for, or on which such individual ceased to perform such duty; the method of travel employed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death.  Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant.  38 U.S.C.A. § 106(d).

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).  The statutory presumptions for service connection do not apply to periods of ACDUTRA or INACDUTRA unless veteran status has been obtained for the period.  See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Hill v. McDonald, 28 Vet. App. 243, 252 (2016).     

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 C.F.R. § 3.306(a).  For wartime service or peacetime service after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation.  38 C.F.R. § 3.306(b).

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310(b).

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 

III. Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran contends that he has back disability as a result of injuries sustained in an automobile or, motor vehicle, accident (MVA) that occurred during his travel from a period of National Guard training.  In support of this assertion, he has submitted multiple lay statements, including statements from fellow service members.  Private hospital records show that the Veteran suffered a back injury in an MVA that occurred the evening of March 11, 1984.  Further, an August 2011 VA examiner diagnoses thoracolumbar spine vertebral dislocation at T12-L1 and states that the injury occurred during the MVA in question.  However, the preponderance of the evidence does not establish that the Veteran's MVA occurred during a period of military service.  

While pay records verify the Veteran participated in unit training on March 10 and 11, 1984, regulations provide that to be considered incurred during active or inactive duty for training, disability must be incurred while proceeding directly to or returning directly from the training period.  38 C.F.R. § 3.6(e).  Here, the Board finds that the Veteran's trip was not direct.

At the August 2010 VA examination, the Veteran informed the examiner that he fell asleep while driving, resulting in the accident.  However, while that may be true, there were other circumstances surrounding the accident that the Veteran did not reveal at that time.  

The September 2011 VA examiner noted that the Veteran reported that he had finished drill and then went to drink five beers, followed by him taking a friend to the friend's house, and going to get gas before driving off a cliff.   The Veteran also indicated that he was released from drill at 3:30 pm and that the accident occurred between 4:30 pm and 5:00 pm, which the examiner questioned, given the activities in which the Veteran stated he engaged between training and the accident.  The Veteran reportedly was unable to offer an explanation about the time.  The Board notes that the private hospital records state that the Veteran was admitted at 9:00 pm after the accident and almost six hours after the claimed training.  
  
The Veteran also informed the September 2011 VA examiner that he had had a blood alcohol content of 0.14 at the time, and this fact is confirmed by the treatment notes of the private hospital from March 1984.   While the remaining elements of the Veteran's description of the events of that night are otherwise uncorroborated, the Board finds this fact alone subverts the claim.   

Regardless of whether the Veteran did prior to the accident drop off a friend or stop for gas, the fact that he was intoxicated at the time indicates that he made at least one stop after departing drill.  The Veteran has never asserted that he was intoxicated when he left drill to return home, and the Board finds unlikely that he consumed the alcohol prior to departing drill as opposed to on a stop on the way home.  In light of the above, the Board concludes that the automobile accident that resulted in the Veteran's back disability did not occur during a period of service or during travel directly to or returning directly from service.  Consequently, service connection on a direct basis must be denied.  

The Board notes that the Veteran's service treatment records have been obtained, to include records from his two most recent periods of active duty.  As entrance examinations were not performed for either period, the presumption of soundness cannot attach.  38 C.F.R. § 3.304(b).  

Whether the Veteran's preexisting back disability was aggravated during a subsequent period of service must be addressed.  38 C.F.R. § 3.303(a).  In February 2011, the Veteran reported that he reinjured his back when he was sent to a combat zone in Iraq.  Initially, the Board observes that the Veteran's service personnel records show that he served in Kuwait in Operation Enduring Freedom from April 22, 2003, to May 1, 2004 and that he had foreign service at the New Mexico Border from June 29, 2006 to September 30, 2007.  Service personnel records do not confirm a tour in Iraq.  

Nevertheless, service treatment records reflect that the Veteran experienced pain in his low back during these periods of service.  An October 2015 VA examiner stated that all periods of active duty and ACDUTRA and INACDUTRA were considered.  The examiner then found that the Veteran's service records do not document an aggravation of his pre-existing back condition beyond its normal progression by service.  The examiner noted that the Veteran was seen in service, particularly during periodic physicals for his back but the complaints were signs of the normal progression of the pre-existing disability.  No opinion to the contrary is of record.  In light of the above, the Board concludes that service connection on the basis of aggravation of a preexisting disability must also be denied.

The Board has duly considered the benefit of the doubt doctrine.  38 U.S.C.A. 
§ 5107; see also Gilbert.  However, as reflected by the above discussion, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim.  





ORDER

Entitlement to service connection for a back injury, to include a scar, as a result of an automobile accident is denied.


REMAND

With respect to the ratings assigned to the Veteran's service-connected generalized anxiety disorder with PTSD, the Board determines that a remand is necessary so that another VA examination to assess the current severity of the Veteran's disability can be scheduled.  The Veteran filed a claim for an increased rating in July 2013, which was denied in the April 2013 rating decision.  In August 2013, the Veteran requested reconsideration of the claim and also filed a claim for a temporary total evaluation for his acquired psychiatric disorder.  The claim was again addressed in an August 2014 rating decision, which denied the temporary total evaluation and also assigned a lower rating of 50 percent to the Veteran's disability, effective May 27, 2014, the date of a VA contract examination.  Since that time, the Veteran has submitted evidence consisting of lay statements and a private psychiatric evaluation suggesting that his disability had not improved during the appeal period and may have worsened.  

Moreover, while VA Medical Center and Vet Center records suggest that the Veteran regularly participates in mental health treatment, the most recent relevant treatment notes of record are dated in July 2015, over a year prior to the private psychiatric evaluation.  For these reasons, the Board determines that another VA examination to assess the severity of the Veteran's acquired psychiatric disorder is warranted. 
   
The claim for a TDIU is inextricably intertwined with the increased rating claim and must also be remanded.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc).

Accordingly, this case is REMANDED for the following actions:
	
1.  Obtain any outstanding records pertinent to the Veteran's claims, including but not limited to, VA and Vet Center mental health notes dated from July 2015 to the present.

2.  The Veteran should be afforded an examination to determine the degree of severity of his acquired psychiatric disability.  All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed.

The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria.

The examiner should also comment on the impact of the Veteran's psychiatric symptoms on his ability to obtain and maintain substantial and gainful employment. 

3.  The AOJ should also undertake any other development it determines to be warranted.
 
4.  Then, the AOJ should adjudicate the issues remaining on appeal, to include entitlement to a TDIU.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his attorney, and they should be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

 

______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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