Veteranclaims’s Blog

September 21, 2011

Single Judge Application, Claim for Service Connection, Inexact Term

Filed under: Uncategorized — Tags: , , — veteranclaims @ 3:00 pm

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.

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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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