Wednesday, September 21, 2011

Single Judge Application, Claim for Service Connection, Inexact Term

Excerpt from decision below: "E. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection."As the Court explained in Hillyard v. Shinseki, the use of this term is inexact, and therefore is–although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit–disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. +++++++++++++++ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0246 DARRELL VULGAMORE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Darrell Vulgamore appeals through counsel a November 27, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to (1) a disability rating in excess of 50% for post-traumatic stress disorder; (2) a disability rating in excess of 40% for reactive hypoglycemia1 secondary to vagotomy2 and pyloroplasty3 for a duodenal ulcer; and (3) a total disability rating based on individual unemployability. Mr. Vulgamore's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believed to require a precedential decision of the Court. Because the Board improperly applied the disability rating schedule in its decisionregardingentitlementto anincreaseddisabilityratingforpost- traumaticstressdisorder,and because the Board provided inadequate reasons or bases for denying entitlement to a total disability Hypoglycemia is "an abnormallydiminished concentration of glucose intheblood." DORLAND'SILLUSTRATED MEDICAL DICTIONARY 915 (31st ed. 2007) [hereinafter DORLAND'S]. A vagotomy is a surgical treatment for ulcers that interrupts the impluses carried by the vagus nerve or nerves. See DORLAND'S at 2048. The vagus is the tenth cranial nerve. Id. at 1280. A pyloroplasty is an "incision of the pylorus and the reconstruction of the channel through it, such as to relieve obstruction or accelerate gastric emptying after a vagotomy for peptic ulcers." DORLAND'S at 1583. The pylorus is "the most distal part of the stomach . . . through which the stomach contents are emptied into the duodenum." Id. 3 2 1 rating based on individual unemployability, those portions of the November 2009 Board decision will be vacated and remanded for further development and readjudication consistent with this decision. BecausetheBoard's determinationthatanincreaseddisabilityratingforhypoglycemiawas not warranted was not clearly erroneous, that portion of the Board decision will be affirmed. I. FACTS Mr. Vulgamore served on active duty from February 1963 to October 1966 and from November 1966 to November 1972, including service in Viet Nam. In October 1968, he underwent a vagotomy and a pyloroplasty to treat a bleeding duodenal ulcer. In October 1972, he was diagnosed with reactive hypoglycemia, probably secondary to the vagotomy and pyloroplasty. In January 1973, a VA regional office granted Mr. Vulgamore's December 1972 claim for benefits for reactive hypoglycemia secondaryto vagotomyand pyloroplastyfor a duodenal ulcer and assigned a 40% disability rating. In March 1995, the regional office granted Mr. Vulgamore's April 1994 claim for benefits for post-traumatic stress disorder and assigned a 50% disability rating. In February 1996, the Social Security Administration determined that Mr. Vulgamore was disabled as of February 1995 due primarily to post-traumatic stress disorder and secondarily to degenerative disc disease. The record reveals that, in November 2000, a VA physician diagnosed Mr. Vulgamore with both post-traumatic stress disorder and bipolar disorder. In June 2005, Mr. Vulgamore sought increased disability ratings for both of his service- connected conditions and asserted that he had been unemployable as a result of those conditions since August 1990. He also advised VA that he was receiving Social Security disability benefits based in part on post-traumatic stress disorder. In September 2005, Mr. Vulgamore underwent a VA digestive conditions examination in which the examiner was asked to determine whether Mr. Vulgamore was unemployable as a result of his hypoglycemia. The examiner reviewed Mr. Vulgamore's claims file and medical records. In reviewing those records, the examiner stated: "[Mr. Vulgamore] never lost a job as a truck driver or backhoe ditch digger because of any problems other than [he] decided to quit because he could not 2 tolerate being around people." Record (R.) at 1186. The examiner also noted: "[Mr. Vulgamore] reports that he worked as a truck driver, and was in an accident in 1990 when he slipped on oil in the parking lot and tried to go back in 1994 and was not able to pass the physical due to his right arm. He then went to commercial fishing and then was not able to work due to his decrease in vision." R. at 1187. The examiner recorded Mr. Vulgamore's description of his hobbies, including yard work, fishing, home remodeling, and traveling with his wife, and noted that he was able to perform the activities of daily living. After a physical examination, the examiner concluded: "It appears that since he was discharged from the service[, Mr. Vulgamore] has not sought medical treatment for his symptoms. He is also able to maintain an active lifestyle even with his symptoms[,] and it is less likely than not that he is unemployable." R. at 1188. Also in September 2005, Mr. Vulgamore underwent a VA post-traumatic stress disorder examination. The examiner reviewed his claims file and medicalhistoryand conducted a 90-minute face-to-face interview and evaluation. Mr. Vulgamore described his marriage as "good, as long as [mywife] stays awayfrom me when I am mad," but the examiner noted that Mr. Vulgamore laughed after making the statement and appeared to have "a rather sardonic sense of humor." R. at 1190. The examiner noted Mr. Vulgamore's prior employment as an over-the-road truck driver, which he had to give up when he began to have problems with his knees and when problems with his arms and hands made gripping the steering wheel difficult. The examiner also noted that Mr. Vulgamore had "a very limited social life" and summarized his mental health treatment since approximately 2000. The examiner stated: "The overall impression from reviewing the notes was that [Mr. Vulgamore] is being treated primarily for bipolar disorder. There are only three documented therapy contacts relative to [post-traumatic stress disorder] issues from 2000 to the present." R. at 1192. The examiner then summarized his findings relative to the post-traumatic stress disorder criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), compared Mr. Vulgamore's current symptoms to his demonstrated past symptomatology, and concluded: "[Mr. Vulgamore's] [post-traumatic stress disorder] symptoms atthis time areclearlynot more intense or frequent than what he reported in 1994. He is not unemployable due to [post- traumatic stress disorder] symptoms alone." R. at 1194. 3 In October 2005, the regional office issued a rating decision continuing both the 40% disability rating for hypoglycemia and the 50% disability rating for post- traumatic stress disorder, and denying entitlement to a total disability rating based on individual unemployability. Mr. Vulgamore filed a Notice of Disagreement with that decision and included a statement from his wife regarding his bad moods, social avoidance, sleep apnea, anger, and poor impulse control. She also described an incident in which Mr. Vulgamore disappeared for several weeks without calling. Mr. Vulgamore ultimately appealed to the Board. In October 2006, Mr. Vulgamore sought treatment for his psychiatric conditions. His attending physician diagnosed bipolar disorder, depression, and panic attacks with agoraphobia, as well as reduced concentration, energy, and motivation. In January 2008, Mr. Vulgamore underwent a VA diabetes mellitus examination in connection with a new claim for that condition. The examiner noted that his VA medical records and VA examinations, as well as laboratorytests administered in May2007, contained no diagnoses of diabetes. Although further examination and testing did not yield a diagnosis of diabetes, the examinerdid notethatMr.Vulgamorecomplainedofdecreasedenergyandappetite, fatigue,nausea, vomiting, and constipation. Mr. Vulgamore underwent another VA diabetes mellitus examination in June 2008 at which he complained of heat intolerance, vomiting, diarrhea, constipation, irritability, moodiness, and night sweats. Again, the examiner concluded that Mr. Vulgamore did not suffer from diabetes. In April 2009, the Board remanded Mr. Vulgamore's claims to the Appeals Management Center for VA examinations to determine the current levels of impairment due to both hypoglycemia and post-traumatic stress disorder. In June 2009, both VA examinations were provided. In the stomach examination, the examinernotedthat overthe past several years, Mr. Vulgamoresufferedfromconstipation, diarrhea, abdominal pain, belching, bloating, nausea, and vomiting. The examiner answered "no" to the questions "Are there signs of significant weight loss or malnutrition?" and "Are there signs of anemia?" R. at 65. The examiner noted mild effects on feeding and toileting, but otherwise determined that Mr. Vulgamore's condition did not affect his daily activities. 4 In the post-traumatic stress disorder examination, the examiner recorded Mr. Vulgamnore's description of his prior employment, including that he had not worked since 1990 and that he had to leave his job as a truck driver after he "went ballistic and hurt somebody." R. at 68. Mr. Vulgamore stated that he and his wife were "still friends," but that he had trouble being around "too manypeople,"andreportedexperiencingpanicattackswhileshopping. TheexaminernotedthatMr. Vulgamore was agitated and guarded with "increased emotional lability." Id. The examiner also noted Mr. Vulgamore's reports of suicidal ideation (without plans or intent), sleep disturbances, and hypervigilence. The examiner compared Mr. Vulgamore's symptoms to the post- traumatic stress disorder criteria described in the DSM-IV and concluded that he does suffer from post-traumatic stress disorder. She stated that his post-traumatic stress disorder symptoms were "not more intense or frequent than in previous exams. Therefore, his [post-traumatic stress disorder] is not causingany more distress than in previous exams. He is not unemployable due to [post- traumatic stress disorder]." R. at 71. Rather, His disability and unemployability appears to be multi-factorial with increasing health problems, unmanaged bipolar disorder, depressive symptoms, and his personality disorder. These do not seem connected to the [post-traumatic stress disorder]. He was diagnosed with Major Depressive Disorder and Bipolar Disorder [previously]. He denied current suicidal ideation, intent or plans, but consistently verbalizes a negative view of himself, his present circumstances, and his future. Symptoms from non-managed bipolar and depression, the stress from his wife's medical illnesses, and his concerns about his health problems (diabetes, peptic ulcer, etc[.]) appear to cause a severe level of distress and seem to be a more likely cause for his current problems. His psychiatrist . . . diagnosed him with Bipolar [disorder], depression, and [post-traumatic stress disorder,] though during therapy she focused on managing the bipolar [disorder]. . . . In review of previous reports, his bipolar [disorder], depression, personality problems, and health problems appear to have worsened, while his [post-traumatic stress disorder] appears to have remained the same. Id. In November 2009, the Board issued the decision on appeal. The Board determined that Mr. Vulgamore's post-traumatic stress disorder warranted no more than a 50% disability rating and his hypoglycemia warranted no more than a 40% disability rating. The Board also concluded that there was no evidence that Mr. Vulgamore was unemployable due to these service- connected conditions. 5 II. ANALYSIS A. Post-Traumatic Stress Disorder Mr. Vulgamore first argues that the Board provided inadequate reasons or bases for its determination that a disability rating in excess of 50% was not warranted for post-traumatic stress disorder. Specifically, he contends that the Board improperly required him to demonstrate the full complement of symptoms contained in 38 C.F.R. § 4.130 to warrant a 70% disability rating for post-traumatic stress disorder, thereby misapplying Mauerhan v. Principi, 16 Vet.App. 436 (2002). The Court agrees. In Mauerhan, the Court explained that "the factors listed in the rating formula [for mental disorders] are 'examples' of conditions that warrant particular ratings” that are intended to assist the adjudicator in differentiating between levels of disability, a task that would be "extremely ambiguous" without the listed factors. 16 Vet.App. at 442. The Court made clear, however, that "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Id. Thus, this "list of examples[ ] provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation." Id. Here, the Board paid lip service to Mauerhan but proceeded to do precisely what Mauerhan prohibits. The Board's discussion was as follows: When interpreted in light of the whole recorded history and reconciling the various reports into a consistent picture (see 38 C.F.R. § 4.2), the Board finds that the evidence portrays a consistent pattern of occupational and social impairment with reduced reliability and productivity throughout the appeal period due to such symptoms as panic attacks; impairment of memory; disturbances of motivation and mood; and difficulty in establishing and maintaining social relationships. There is, however, no evidence of the kinds of symptoms that would warrant a rating of 70 percent or higher at any time during the appeal period. Although [Mr. Vulgamore] does admit to occasional thoughts of suicide and has expressed concern that he may hurt others, these thoughts are not persistent, and there is no plan or intent. There is also no report of obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to 6 function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or complete inability to establish and maintain effective relationships; gross impairment in thought processes or communication; inability to perform activities of daily living (including maintenance of minimal personal hygiene); or memory loss for names of closes relatives, own occupation, or own name at any time during the appeal period. Although [Mr. Vulgamore] does complain of some auditory illusions, Compensation and Pension examiners indicate that this is "illusionary" and not indicative of a psychotic thought process, and the record contains no evidence to the contrary. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Moreover, while reportedly reclusive, easily agitated and angered, and "moody," [Mr. Vulgamore's] relationships with close family and friends are intact, and both Compensation and Pension examinersaverthat[his]post[-]traumaticstressdisorderdoesnot renderhim unemployable. The Board further notes that [Mr. Vulgamore] receives little outpatient treatment for his post[-]traumatic stress disorder, and has never been hospitalized for [post-traumatic stress disorder]. Accordingly, for the reasons just expounded, the Board finds that the criteria for a rating of 70 percent or higher for posttraumatic stress disorder are not met at any time during the appeal. 38 C.F.R. §[§] 3.102, 4.130, 4.132 Diagnostic Code 9411. R. at 14-15 (emphasis added). In other words, the Board determined that Mr. Vulgamore experienced"occupationalandsocialimpairmentwithreducedreliability"( theeffectofthedisability required for a 50% disability rating) because his symptomatology–panic attacks, memory impairment,mooddisturbances, anddifficultiesestablishingandmaintainingrelationships–matched those included in the rating criteria for a 50% disability rating. Similarly, the Board determined that Mr. Vulgamore must not have experienced "occupational and social impairment with deficiencies in most areas, including work, school, familyrelationships, judgment, thinking, or mood" (the effect of the disability required for a 70% disability rating) because his symptoms did not match those included in the rating criteria for a 70% disability rating. It was clear error for the Board to conclude that Mr. Vulgamore could be occupationally and socially impaired to the degree required for a 70% disabilityratingonlyif the evidence demonstratedthespecificcriteriasetforthin therating schedule for a 70% rating. See 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) (holding that the Court reviews the Board's assignment of the disability rating assigned under the "clearlyerroneous"standard of review). Accordingly, the Court will vacate the Board's decision and remand the matter for readjudication. 7 The record is replete with evidence regarding the level of Mr. Vulgamore's occupational and social functioning. On remand, the Board should thoroughly consider this evidence in determining whether an increased disability rating is warranted and not simply match Mr. Vulgamore's documented symptoms of post-traumatic stress disorder to the criteria contained in the rating schedule. The Board should obtain a new examination if doing so would assist the Board in determining the effects of Mr. Vulgamore's post-traumatic stress disorder symptoms on his occupational and social functioning. Although the Court is remanding this claim, to provide the Board additional guidance on remand, the Court will address Mr. Vulgamore's assertion that the June 2009 VA post-traumatic stress disorder examination was inadequate. See Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). Mr. Vulgamore contends that the VA examiner "failed to properly explain how to separate the symptoms of [post-traumatic stress disorder] and the bipolar disorder/depression" and "failed to explain why [his] health problems appeared to have aggravated his bipolar disorder and depression but not his [post-traumatic stress disorder]." Appellant's Brief (Br.) at 24, 25. The Court disagrees. The June 2009 VA post-traumatic stress disorder examination is extremely thorough. The examiner reviewed Mr. Vulgamore's claims file and medical records, extensively outlined Mr. Vulgamore's psychiatric treatment history between 2000 and 2009, emphasized the portions of Mr. Vulgamore's treatment records related to post-traumatic stress disorder, recorded a detailed social history, and conducted a detailed post-traumatic stress disorder examination. During that examination, the examiner painstakingly followed the DSM-IV and noted the symptoms Mr. Vulgamore demonstrated that met each of the six post-traumatic stress disorder criteria. In reaching her conclusion that Mr. Vulgamore's post-traumatic stress disorder symptomatology had not increased, the examiner compared Mr. Vulgamore's current reported symptomatology to that contained in previous treatment records. She expressly stated: "In review of previous reports, his bipolar, depression, personality problems, and health problems appear to have worsened, while his [post-traumatic stress disorder] appears to have remained the same." R. at 71. She stated that this wasconsistent with researchthatshowedthatpost- traumaticstressdisordersymptoms usuallylessen over time. Twice, the examiner indicated that some of Mr. Vulgamore's symptomatology "seemed more like someone who had bipolar disorder that was not being managed." R. at 70. 8 The Court is satisfied that, when read as a whole, the examiner provided adequate support and rationale for her conclusion that Mr. Vulgamore's post-traumatic stress disorder had not worsened and that his deteriorating functioning was attributable to unmanaged bipolar disorder and depression. See Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994); see also Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 304 ( 2008). Accordingly, the Court concludes that the Board did not err in relying on the June 2009 VA post-traumatic stress disorder examination. Onremand,Mr.Vulgamoreis freeto submitadditional evidenceandargumentin accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). Further, "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). B. Hypoglycemia As the Board noted, a 40% disability rating is warranted for moderate postgastrectomy syndrome4 with "less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss." 38 C.F.R. § 4. 114, Diagnostic Code 7308 (2011). A 60% disability rating is warranted for severe postgastrectomy syndrome "associated with nausea,sweating,circulatorydisturbanceaftermeals,diarrhea, hypoglycemicsymptoms, andweight loss with malnutrition and anemia." Id. The Board determined that, although there was "subjective and objective evidence of weight loss, fatigue, diarrhea, and nausea," there was "absolutely no evidence of weight loss with malnutrition and anemia" related to Mr. Vulgamore's reactive hypoglycemia. R. at 19. Accordingly, the Board determined that he was not entitled to a 60% disability rating. Mr. Vulgamore argues that the Board erred because it improperly interpreted Diagnostic Code 7308 as requiring evidence of all of the criteria listed in the rating schedule for that rating. He There is no diagnostic code for precisely the condition Mr. Vulgamore has; his disability is rated by analogy. See 38 C.F.R. § 4.20 (2011). 4 9 asserts that, because he has most of the symptoms listed for a 60% disability rating, 38 C.F.R. § 4.7 required the Board to assign a 60% disability rating. The Court disagrees. The rating criteria under Diagnostic Code 7308 are successive; that is, each higher disability rating contains all of the symptoms of the disability rating below it in addition to "new" symptoms warranting a higher disability rating. In such a case, all criteria for the higher disability rating must be present for a claimant to be entitled to the higher disability rating. See Camacho v. Nicholson, 21 Vet.App. 360, 367 (2007) (holding that the criteria contained in 38 C.F. R. § 4.119, Diagnostic Code 7913, for diabetes are cumulative and therefore a claimant must demonstrate all of the criteria for a particular rating). Much as the Court found in Camacho, if anemia and malnutrition were not required elements of a 60% disability rating for postgrastrectomy syndrome ( along with "hypoglycemicsymptoms,"whichMr.Vulgamorenecessarilydemonstrates, giventhatheis service- connected for hypoglycemia), there would be no need for a 40% disability rating–everyone who simplydemonstrated weight loss in addition to the other criteria wouldbeentitledto a 60% disability rating. The Court will not presume that the Secretaryintended such an absurd result. See id. at 366- 67 (citing Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) (" Canons of construction . . . require us to give effect to the clear language of a [regulation] and avoid rendering any portions meaningless or superfluous.")). Mr. Vulgamore's reliance on Tatum v. Shinseki, 23 Vet.App. 152 (2009), is misplaced. The regulation at issue in that case, 38 C.F.R. § 4.119, Diagnostic Code 7903, contains rating criteria for hypothyroidism that are not successive. Accordingly, the Court found that Camacho's holding did not applyand remanded the matter to the Board to determine whether § 4.7 permitted the assignment of a higher disability rating in the face of evidence that the appellant demonstrated at least some of the symptoms required for a higher rating. 23 Vet.App. at 155-57. That is not the case here. Accordingly, Mr. Vulgamore's argument is without merit, and the Court concludes that the Board's determination that an increased disability rating for hypoglycemia was not warranted is not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). To the extent that Mr. Vulgamore argues that the June 2009 stomach examination was inadequate because it did not discuss whether he suffers from hypoglycemia, any error in that regard is harmless. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. 10 § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Because there is no dispute that Mr. Vulgmore suffers from hypoglycemia (the only question being the severityof the condition), and because the examiner unequivocallystated that there was no evidence of malnutrition or anemia (requirements for the maximum 60% disability rating), a finding that Mr. Vulgamore does not dispute, remand for a new examination that expressly states that he has hypoglycemia can serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that "strict adherence" to reasons or bases requirement where evidence was "overwhelmingly" against the claim would unnecessarily impose additional burdens on the Board with no benefit flowing to the veteran); see also Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (holding that, "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision"). Accordingly, the Court will affirm that portion of the Board decision that denied entitlement to an increased disability rating for hypoglycemia. C. Total Disability Rating Based on Individual Unemployability Mr. Vulgamore asserts that the Board provided an inadequate statement of reasons or bases for its determination that he is not entitled to a total disability rating based on individual unemployability. Specifically, he argues that the Board did not address whether, "in light of his service-connected disabilities, [he] could perform an occupation which would provide an 'annual income that exceeds the poverty threshold for one person.'" Appellant's Br. at 22-23 (quoting Faust v. West, 13 Vet.App. 342, 3556 (2000)). The Court agrees. "[T]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 4.15 (2011). Even where a service- connected disabilityis less than total, a veteran may be entitled to a total disability rating if that veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2011). Under section 4.16( a), a total disability rating will be awarded, even where the schedular rating is less than total, (1) when the disabled person is "unable to secure or follow a substantially gainful occupation" as a result of service-connected disabilities; and (2) if there is only one such disability, that it is ratable at 60[%] or more, or if there 11 are two or more disabilities, there shall be at least one disability ratable at 40% and sufficient additional disability to bring the combined rating to 70% or more. Because, as the Board found, Mr. Vulgamore has a combined disability rating of 70%,5 the remaining question is whether his service- connected disabilities render him unable to obtain and maintain a substantially gainful occupation. Inthis regard,theBoardfirstdeterminedthatMr.Vulgamorewasnot unemployablebyvirtue of anysingle service-connected disability, relying on various VA medical records to that effect. The Board acknowledged that the Social Security Administration considered Mr. Vulgamore disabled based, in part, on post-traumatic stress disorder, but noted that the Social Security Administration also considered him disabled due to a non-service-connected back condition. Mr. Vulgamore does not dispute this finding, and the Court finds no error. Next, the Board stated: There is also no probative evidence that [Mr. Vulgamore] is unemployable based solely on a combination of service-connected disabilities. Indeed, a January 2007 VA Compensation and Pension examination found no more than "moderate" high frequency hearing loss bilaterally, and found good word recognition. In addition, while [Mr. Vulgamore's] service-connected digestive disability has been evaluated as 40[%] disabling, a September 2005 VA Compensation and Pension examiner avers that "it is less likely than not that he is unemployable," and points outs that [he] is able to maintain an active lifestyle even with his symptoms. According to a June 2009 examiner, apart from a mild impact on his feeding and toileting, [Mr. Vulgamore's] activities of daily living are not limited by his digestive disability. There is also no evidence, lay or medical, that [he] is unemployable by virtue of his service-connected hemorrhoids disability, which is evaluated as 0[%] disabling. R. at 22. Not only does this discussion leave out post-traumatic stress disorder in considering whether the combination of Mr. Vulgamore's service-connected disabilities renders him unemployable, but the Board also failed to acknowledge the absence of medical evidence that evaluates Mr. Vulgamore's employability comprehensively. That is, at various times, various VA examiners have stated that a particular disability does not render Mr. Vulgamore unemployable, yet VA has obtained no medical opinion that considers whether the effects of all of Mr. Vulgamore's service-connecteddisabilitiescombined render him unemployable. This is theessentialquestion the In addition to the disabilities addressed in this decision, Mr. Vulgamore also receives disability benefits for tinnitus, rated 10% disabling, as well as hemorrhoids and hearing loss, both rated noncompensable. R. at 21. 5 12 Board must answer, yet it attempts to do so in the absence of a medical opinion that reaches this issue. The Board's conclusion amounts to a finding that because no single disability renders Mr. Vulgamore unemployable, the cumulative effect of those individual disabilities must also not render him unemployable. This is not permitted. Accordingly, the CourtconcludesthattheBoard's reasons or bases are inadequate, and remand is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998). On remand, the Board will obtain a medical opinion or examination that specifically considers whether the combination of the effects of Mr. Vulgamore's service-connected disabilities renders him unable to obtain and maintain substantially gainful employment. As noted above, Mr. Vulgamore is free to submit additional evidence and argument on this issue. See Kay, 16 Vet.App. at 534; Kutscherousky, 12 Vet.App. at 372-73. D. Reasonably Raised Claims Finally, Mr. Vulgamore argues that the Board erred in not adjudicating reasonably raised claims for benefits for bipolar disorder and depression. He asserts that, because the June 2009 VA post-traumatic stress disorder examiner attributed many of his symptoms to bipolar disorder and depression, the Board was required to adjudicate claims for those conditions. The Court disagrees. First, Mr. Vulgamore's reliance on Clemons v. Shinseki, 23 Vet.App. 1 ( 2009), is misplaced. In that case, a self-represented appellant filed an initial claim for benefits for post-traumatic stress disorder that was denied based on a lack of a current diagnosis of that condition. The Board, however, failed to consider whether the claimant was entitled to benefits for schizoid personality disorder, a distinct mental disorder with which he had been previously diagnosed. The Court, citing the well-established rule that a layperson is generally not competent to provide a medical diagnosis, explained that VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim." Clemons, 23 Vet.App. at 5. Here, however, Mr. Vulgamore was not seeking initial benefits for symptoms that he thought were caused by post-traumatic stress disorder that turned out to be caused by bipolar disorder or depression; he had already been diagnosed with–and compensated for–post-traumatic stress disorder. Mr. Vulgamore's claim was denied because his already diagnosed and service- connected post-traumatic stress disorder had not worsened, not because the Board improperly 13 narrowed the scope of his claim. That Mr. Vulgamore suffers from bipolar disorder and depression is irrelevant to the question of whether his post-traumatic stress disorder has worsened. Further, the mere existence in the medical records of a diagnosis for a condition for which a claimant is not service connected is not sufficient to raise a new claim for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) ("The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."). Mr. Vulgamore fails to identify any evidence in the record indicating that he sought VA benefits for his bipolar disorder or depression, or that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits for those conditions. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App. 32, 35 (1998) (to file a claim, a "claimant must submit a written document identifying the benefit and expressing intent to seek it"); see also Criswell, 20 Vet.App. at 504. In the absence of Mr. Vulgamore having submitted a claim for those conditions, it was not error for the Board not to address them.6 See Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider all issues raised by the claimant or reasonably raised bythe evidence of record). To the extent that Mr. Vulgamore relies on the June 2009 VA examiner's discussion of his bipolar disorder and depression as creating a duty for the Board to adjudicate claims for those conditions, the Court is unpersuaded. Mr. Vulgamore's claim was one for an increased disability rating for post-traumatic stress disorder. As such, the current level of symptoms caused by that condition was of primary importance both to the June 2009 VA examiner and to the Board. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (holding that in claims for an increased disability rating, the current level of disability is the primary concern). The VA examiner was directed to undertake a post-traumatic stress disorder examination to determine the current level of severity of Mr. Vulgamore's post-traumatic stress disorder and to opine as to whether that condition rendered Moreover, the record reveals that Mr. Vulgamore was diagnosed with bipolar disorder and depression at least as early as 2000, five years before he sought an increased disability rating for post-traumatic stress disorder, yet he never sought VA benefits for those conditions and only raises the possibility of unadjudicated claims for those conditions for the first time on appeal. R. at 1235-36. It is also worth noting that Mr. Vulgamore does not argue in his briefs, or cite any evidence in the record that supports the assertion, that his bipolar disorder or depression are related to service. 6 14 him unemployable. See R. at 66, 129. The examiner was under no duty to determine the severity or etiology of any other condition. In light of this discussion, the Court concludes that it was not error for the Board to not consider claims for benefits for bipolar disorder and depression. Mr. Vulgamore remains free to file claims for those benefits should he so desire. E. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection." As the Court explained in Hillyard v. Shinseki, the use of this term is inexact, and therefore is–although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit–disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. III. CONCLUSION Upon consideration of the foregoing, those portions of the November 27, 2009, Board decision that denied entitlement to an increased disability rating for post-traumatic stress disorder and to a total disability rating based on individual unemployability are VACATED and the matters are REMANDED for further development and readjudication consistent with this decision. The remainder of the Board decision is AFFIRMED. DATED: September 14, 2011 Copies to: Nicholas L. Phinney, Esq. VA General Counsel (027) 15

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