US Court of Appeals for Veterans Claims

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

MICHAEL JENNINGS, ) ) Petitioner, )

) ) v. ) Vet. App. No. 20-7519 WRIT ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, ) ) Respondent. )

SECRETARY’S RESPONSE TO COURT ORDER DATED NOVEMBER 20, 2020

On October 22, 2020, Michael Jennings, pro se, filed two petitions

for extraordinary relief in the form of a writ of mandamus (Petition). In the

first Petition, he asserts entitlement to a 30% rating, effective October 1,

1997, for nephrolithiasis currently rated at 10%. Petition at 1. In the

second Petition, Petitioner asserts that his “left knee, chest surgery, PTSD,

eye condition (glaucoma), bilateral foot condition, nephrolithiasis, [and]

addiction” claims should have an effective date of October 1, 1997, rather

than March 30, 2009. Petition at 17-18.

In its November 20, 2020, Order, the Court directed the Secretary to

provide the status of the Petitioner’s claims and to advise the Court of any

appellate options that might be available to Petitioner.

The Secretary, hereby, responds to the Court’s Order.

2

Status of Claims

The declaration of Tyler Parhalo, an Assistant Service Center

Appeals Team Coach at the Department of Veterans Affairs (VA) Regional

Office (RO) in Nashville, Tennessee and the associated exhibit provide the

development that has been undertaken and the status of the claims. See

Secretary’s Exhibit at 2-197. The status of the respective claims are as

follows.

Nephrolithiasis

In an April 22, 1998, rating decision, the RO granted service

connection for nephrolithiasis and assigned a noncompensable rating,

effective October 1, 1997. See Secretary’s Exhibit at 1¶b; 5, 7-8.

Petitioner was subsequently granted a 10% disability rating for the

disability with an effective date of October 1, 1997, in an April 2000 rating

decision. See id. at 184-87. An August 2015 rating decision reviewed the

10% evaluation and determined that a higher rating was not warranted.

See id. at 37-38 (36-43). Petitioner appealed that determination. See id. at

44-75. The appeal was certified to the Board in April 2017. See

Secretary’s Exhibit at 176. On December 1, 2020, staff from the Board

advised Counsel that Petitioner is scheduled for a virtual Board hearing on

January 5, 2021. See Secretary’s Exhibit at 174-75.

3

Left Knee

In an April 1998 rating decision, the RO granted service connection

for a scar, status post arthroscopy of the left and assigned a

noncompensable disability rating, effective October 1, 1997. See

Secretary’s Exhibit at 1¶d, 5-9. The disability rating was subsequently

increased to 10%, effective October 1, 1997, in a May 2, 2000, rating

decision. See id. at 1¶d, 184-87.

Chest Surgery

In an April 1998 rating decision, the RO granted service connection

for scars, bilateral breasts, status post bilateral subcutaneous mastectomy.

A noncompensable rating was assigned, effective October 1, 1997. See

Secretary’s Exhibit at 2¶e, 5-6.

Post-Traumatic Stress Disorder (PTSD)

In a June 2017 rating decision, the RO granted service connection

for acquired unspecified adjustment disorder to include PTSD and

assigned 30% disability rating, effective March 30, 2009. See Secretary’s

Exhibit at 2¶f, 79-81. Petitioner appealed the effective date of the disability

on July 10, 2017. See id at 2¶f, 94. The appeal was certified to the Board

on July 24, 2018. See id. at 2¶f, 178. On December 1, 2020, staff from the

Board advised Counsel that Petitioner is scheduled for a virtual Board

hearing on January 5, 2021. See Secretary’s Exhibit at 174-75.

4

Eye Condition (glaucoma)

In a December 2019 decision, the Board granted an effective date of

October 1, 1997, for Petitioner’s service-connected bilateral glaucoma.

See Secretary’s Exhibit at 127-36. In a September 2020 rating decision,

the RO implemented that grant of benefits. See id. at 164-73.

Bilateral Foot Disability

In a November 1998 rating decision, the RO, inter alia, granted

service connection for a bilateral foot condition that it characterized as

partial loss of the arches and assigned a 10% disability rating, effective

October 1, 1997. See Secretary’s Exhibit at 2¶i, 13, 16. In a March 2011

rating decision, the RO granted a separate 10% disability rating for

bilateral pes planus with fasciitis and arthritis of each foot and assigned an

effective date of April 1, 2009, respectively. See id. at 22-25. Petitioner

appealed the earlier effective date issue and the matter has been certified

to the Board. See Secretary’s Exhibit at 2¶I, 176. On December 1, 2020,

staff with the Board advised Counsel that Petitioner has been scheduled

for a virtual Board hearing on January 5, 2021. See id. at 174-75.

The Secretary notes that in September 2020, VA received

Petitioner’s “Decision Review Request: Higher Level Review” for, inter

alia, an earlier effective date for plantar fasciitis, arthritis, and pes planus.

See Secretary’s Exhibit at 188-89.

5

Addiction

Appellant is not service connected for addiction. The claim was

denied in an April 1998 rating decision. See Secretary’s Exhibit at 2¶h, 5,

8. On November 4, 2015, VA received a Notice of Disagreement (NOD)

wherein Petition indicated that he was appealing a November 7, 1998,

rating decision with regard to claims involving addiction and a nervous

condition. See id. at 190-91. The Secretary notes, however, that the claim

was denied in an April 1998 rating decision. See id. at 5,8. In February

2016, the RO notified Petitioner this his NOD was untimely. See id. at

192-94.

Appellate Options

As the Secretary noted above, Petitioner has appeals for an earlier

effective date for service connection for an acquired unspecified

adjustment disorder to include PTSD and for bilateral pes planus with

fasciitis and arthritis pending before the Board. See Secretary’s Exhibit at

176, 178, If the Board does not render a favorable decision concerning

those matters, Petitioner may appeal this case to the Court per 38 U.S.C. §

7266(a) or he may file a Supplemental Claim presenting new evidence with

the agency of original jurisdiction per the Appeals Improvement and

Modernization Act.

As to the left knee, chest surgery, and eye condition, Petitioner has

an effective date of October 1, 1997, for those respective disorders. See

6

Secretary’s Exhibit at 184-87 (May 2000 rating decision showing 10%

disability rating, effective October 1, 1997, for left knee disability), 5-6 (April

1998 rating decision showing service connection for chest disorder,

effective October 1, 1997), 161-73 (September 2020 rating decision

implementing grant of an effective date of October 1, 1997, for service-

connected bilateral glaucoma). The disorders do not appear to be in

appellate status, and Petitioner’s request for an earlier effective date for

them is moot. Accordingly, there are not any apparent appellate options

available to Petitioner at this time.

Turning to the addiction claim, Petitioner is not service-connected for

that disorder. It appears, however, that Petitioner filed an NOD in

November 2015 seeking to challenge the denial of that claim. In February

2016, the RO notified Petitioner that his NOD was untimely. See

Secretary’s Exhibit at 192-94. Petitioner is entitled to appeal the timeliness

of his NOD. See 38 C.F.R. § 19.34. (whether an NOD has been filed on

time is an appealable issue). Counsel for the Secretary submits that based

on a review of the Veterans Benefits Management System there is no

indication that Petitioner has filed any such pleading.

7

WHEREFORE, the Secretary respectfully responds to the Court’s

November 20, 2020, Order.

Respectfully submitted,

WILLIAM A. HUDSON, JR., Principal Deputy General Counsel

MARY ANN FLYNN Chief Counsel

/s/ Kenneth A. Walsh

KENNETH A. WALSH Deputy Chief Counsel

/s/ Bobbiretta E. Jordan__

BOBBIRETTA E. JORDAN Appellate Attorney Office of General Counsel (027J) U.S. Department. of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420 (202) 632-6955

Attorneys for the Respondent, Secretary of Veterans Affairs

CERTIFICATE OF SERVICE On December 4, 2020, a copy of the foregoing was mailed postage

prepaid to:

Michael Jennings P.O. Box 54192 Millington, TN 38054

I certify under the penalty of perjury under the laws of the United

States of America that the foregoing is true and correct.

/s/ Bobbiretta E. Jordan BOBBIRETTA E. JORDAN

Counsel for Appellee

EXHIBIT

2

disability. Mr. Jennings was previously granted service connection for scar, status post arthroscopy, left knee at 0 percent disabling effective October 1, 1997. This grant was completed in a Rating Decision dated April 22, 1998. A Rating Decision dated May 2, 2000, granted service connection for left knee arthritis at 10 percent disabling effective October 1, 1997.

e. In an e-mail, Mr. Jennings requested an earlier effective dated of October

1, 1997, rather than March 30, 2009, for his chest surgery claim. Mr. Jennings was previously granted service connection for scars, bilateral breasts, status post bilateral subcutaneous mastectomy at 0 percent disabling effective October 1, 1997. This grant was completed in a Rating Decision dated April 22, 1998.

f. In an e-mail correspondence, Mr. Jennings requested an earlier effective date of October 1, 1997, rather than March 30, 2009, for his PTSD A Rating Decision dated June 12, 2017, granted service connection for unspecified adjustment disorder, claimed as acquired psychiatric disorder to include PTSD and assigned a 30 percent disabling rating, effective March 30, 2009. Mr. Jennings filed a Notice of Disagreement, received July 10, 2017, for the effective date of the grant. The appeal was certified to BVA on July 24, 2018, and the appeal is currently active before the BVA.

g. In an e-mail correspondence, Mr. Jennings requested an earlier effective date of October 1, 1997, rather than March 30, 2009, for his eye condition (glaucoma). A Rating Decision dated September 14, 2020, processed a BVA Decision from December 12, 2019, which granted entitlement to an effective date of October 1, 1997, for service connection of bilateral glaucoma.

h. In an email correspondence, Mr. Jennings requested an earlier effective date of October 1, 1997, rather than March 30, 2009, for his addiction claim. The claim for addiction was denied in a Rating Decision dated April 22, 1998, which stated that addition is defined by law as willful misconduct and is not a disability for which compensation can be paid.

i. In a November 1998 rating decision, service connection was granted for a

bilateral foot condition (partial loss of the arches). A 10% disability rating was assigned, effective October 1, 1997. A March 2011 Rating Decision granted a separate disability rating for bilateral pes planus with fasciitis and arthritis for each foot and assigned a 10% disability rating, effective April 1, 2009. VA Rating Decision dated August 26, 2015, addressed the Veteran’s claim for an earlier effective date and higher rating for these 2 conditions. The Rating Decision found that no revision was warranted, and the Veteran submitted a Notice of Disagreement, received on November 4, 2015, for the effective date and evaluation of these conditions. The appeal was certified to BVA on April 11, 2017, and is currently pending before the Board.

Exhibit Page 2

3

Executed on December 2, 2020 _______________________ Tyler Parhalo, Assistant Service Center Manager

JAMES T. PARHALO 264593

Digitally signed by JAMES T. PARHALO 264593 Date: 2020.12.02 11:20:31 -06'00'

Exhibit Page 3

VA Regional Office 110 9th Avenue South

Nashville TN 37203

DEPARTMENT OF VETERANS AFFAIRS

MICHAEL JENNINGS PO BOX 54192 MILLINGTON, TN 38054 Dear Mr. Jennings: We made a decision on your Notice of Disagreement received on December 21, 2009. This letter tells you about your entitlement amount and payment start date and what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance. Your Award Amount and Payment Start Date

Your monthly entitlement amount is shown below:

Monthly Entitlement

Amount

Payment Start Date

Reason For Change

$770.00 May 1, 2009 Compensation Rating Adjustment

We are paying you as a single veteran with no dependents. You Can Expect Payment

Your payment begins the first day of the month following your effective date. You will receive a payment covering the initial amount due under this award, minus any withholdings. Thereafter, payment will be made at the beginning of each month for the prior month. For example, benefits due for May are paid on or about June 1. Your payment will be directed to the financial institution and account number that you specified. To confirm when your payment was deposited, please contact that financial institution.

If this account is no longer open, please notify us immediately.

In Reply Refer To: 320/215/cns CSS JENNINGS, Michael

March 14, 2011

Exhibit Page 18

2 CSS Jennings, Michael What We Decided

Evaluation of bilateral pes planus with plantar fasciitis and arthritis, which is currently evaluated as 10 percent disabling, is increased to a combined evaluation of 20 percent with the assignment of separate 10 percent evaluations for each foot, effective April 1, 2009. We determined that the following service connected condition has worsened, so we granted an increase in your assigned percentage:

Medical Description

Old Percent (%)

Assigned

New Percent (%)

Assigned

Effective Date

Calcified granuloma of the lungs (also claimed as lung disorder,

low lung volume, and asbestosis)

0% 10% Jan 7, 2010

We have enclosed a Statement of the Case (SOC) on the remaining issues on appeal. Your overall or combined rating is 50% effective April 1, 2009. We do not add the individual percentages of each condition to determine your combined rating. We use a combined rating table that considers the effect from the most serious to the least serious conditions.

We have enclosed a copy of your Rating Decision for your review. It provides a detailed explanation of our decision, the evidence considered, and the reasons for our decision. Your Rating Decision and this letter constitute our decision based on your Notice of Disagreement received on December 21, 2009. It represents all claims we understood to be specifically made, implied, or inferred in that disagreement.

We enclosed a VA Form 21-8764, "Disability Compensation Award Attachment-Important Information," which explains certain factors concerning your benefits.

Information About Dependents Veterans having a 30% or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or if prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. The additional benefit for a spouse is payable in a higher amount when the spouse is a patient in a nursing home or so disabled as to require the regular aid and attendance of another person.

Exhibit Page 19

3 CSS Jennings, Michael Are You Entitled to Additional Benefits?

You may be eligible for medical care by the VA health care system for any service connected disability. You may apply for medical care or treatment at the nearest medical facility. If you apply in person, present a copy of this letter to the Patient Registration/Eligibility Section. If you apply by writing a letter, include your VA file number and a copy of this letter.

REDUCE OR ELIMINATE

YOUR MEDICAL CO-PAYMENTS

If you receive care at a VA medical facility, please call our Health Benefits Call Center at 1-877-222-VETS (8387) or notify your local VA medical center of this change in your compensation benefits. This rating decision may reduce or eliminate your co- payments for your VA-provided medical care. You may also be eligible for a refund based on this rating decision. Information regarding VA health care eligibility and co-payments is available at our website www.va.gov/healtheligibility.

You should contact your State office of veteran's affairs for information on any tax, license, or fee-related benefits for which you may be eligible as a veteran (or surviving dependent of a veteran). State offices of veteran's affairs are available at http://www.va.gov/statedva.htm.

You may be able to receive vocational rehabilitation employment services. The enclosed VA Form 28-8890, "Important Information About Vocational Rehabilitation Benefits," explains this benefit completely. To apply for this benefit, complete and return the enclosed VA Form 28-1900, "Disabled Veterans Application for Vocational Rehabilitation."

What You Should Do If You Disagree With Our Decision

If you do not agree with our decision, you should write and tell us why. You have one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision," explains your right to appeal.

If You Have Questions or Need Assistance

If you have any questions, you may contact us by telephone, e-mail, or letter.

Exhibit Page 20

4 CSS Jennings, Michael

If you Here is what to do. Telephone Call us at 1-800-827-1000. If you use a

Telecommunications Device for the Deaf (TDD), the number is 1-800-829-4833.

Use the Internet Send electronic inquiries through the Internet at https://iris.va.gov.

Write Put your full name and VA file number on the letter. Please send all correspondence to the address at the top of this letter.

In all cases, be sure to refer to your VA file number If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at https://iris.va.gov. We have no record of you appointing a service organization or representative to assist you with your claim. You can contact us for a listing of the recognized veterans' service organizations and/or representatives. Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions.

Sincerely yours,

T. E. KraftT. E. KraftT. E. KraftT. E. Kraft T. E. Kraft Manager, Veterans Service Center E-mail us at https://iris.va.gov Enclosures: Rating Decision dated March 11, 2011 Statement of the Case VA Form 21-8764 VA Form 28-1900 VA Form 28-8890 VA Form 4107

Exhibit Page 21

DEPARTMENT OF VETERANS AFFAIRS NASHVILLE REGIONAL OFFICE

110 9TH AVENUE SOUTH NASHVILLE, TN 37203

Michael Jennings

VA File Number

Decision Review Officer Decision March 11, 2011

INTRODUCTION

The records reflect that you are a veteran of the Vietnam Era, Peacetime and Gulf War Era. You served in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 to September 30, 1997. We received a Notice of Disagreement from you on December 21, 2009 (as well as subsequent Notice of Disagreements) about one or more of our earlier decisions. You elected to have your appeal handled under the DRO de novo review appeals process. Based on a review of the evidence listed below, we have made the following decision(s) on your claim.

DECISION 1 . Evaluation of bilateral pes planus with plantar fasciitis and arthritis, which is currently evaluated as 10 percent disabling, is increased to a combined evaluation of 20 percent with the assignment of separate 10 percent evaluations for each foot, effective April 1, 2009. 2 . Evaluation of calcified granuloma of the lungs (also claimed as lung disorder, low lung volume, and asbestosis), which is currently 0 percent disabling, is increased to 10 percent effective January 7, 2010.

Exhibit Page 22

Michael Jennings

Page 2

EVIDENCE

• Service treatment records for service period August 30, 1973 to November 29, 1976 and November 5, 1979 and September 30, 1997.

• VA general medical examination conducted at VAMC Memphis on August 13, 1998.

• Previous rating decision dated April 22, 1998, which you were notified by letter dated May 1, 1998.

• Previous rating decision dated November 7, 1998, which you were notified by letter dated November 17, 1998.

• Statement received from you on March 30, 2009, with claim request for vision disability and attached copies of service treatment records, copy of VA C&P Exam dated July 8, 1998, VA C&P Eye exam dated August 13, 1998, article from website on Glaucoma.

• VA Form 21-526, Application for Compensation/Pension, received on March 30, 2009, with list of problems.

• Statement from you received April 13, 2009 with copies of service treatment records and service personnel records with transfer orders dated in July and November 1985.

• Optometry Consult from VA Medical Center, Memphis, dated April 12, 2006.

• Treatment report (unidentified source) dated April 23, 2003.

• Copy of service treatment record eye exam dated October 15, 1992, August 5, 1992 and November 10, 1987.

• Service personnel records.

• Statement received from you on April 6, 2009.

• VA Form 21-4138 'Statement in Support of Claim' received December 2, 2009.

• Treatment report from VA Medical Center Nashville dated August 1998, August 2001, October 2001, and August 2001.

• Copy of prior Statement of Case dated November 7, 1998 and August 26, 2000.

• VA Form 21-4138 'Statement in Support of Claim' opening a new claim for benefits received December 14, 2009.

• Treatment reports from VA Medical Center, Nashville, dated from August 1998; October 2002, and from April 2009 to October 2009.


• Copy of regulations and article titled, "Glaucoma, Suspect, Adult", "Ocular Hypertension" received December 23, 2009.

• Statement received December 28, 2009.


• VA Form 21-4138 'Statement in Support of Claim' opening a claim for benefits received January 7, 2010.

• VA Form 21-0820, Report of General Information, documented phone contact with you on January 14, 2010 and January 22, 2010, with clarification of your claims.

• VA Eye Exam, Nashville VA Medical Center, dated January 8, 2010.

• VA Form 21-4138 'Statement in Support of Claim' received January 19, 2010.

• Statement with report, Analytical Industries, Inc., received February 4, 2010.

Exhibit Page 23

Michael Jennings

Page 3 • Treatment reports from VA Medical Center Memphis for the period August 1998 to

June 2010.

• Duty to assist letters sent to you dated January 22, 2010; February 24, 2010; April 23, 2010; and May 24, 2010 informing you of what the evidence must show to substantiate your claims.

• Previous rating decision dated February 18, 2010, which you were notified by letter dated February 22, 2010.

• VA Form 21-0820 'Report of General Information' dated March 2, 2010.

• Letter from you received March 4, 2010.

• Multiple and repeated submittals of statements, contentions, and Notices of Disagreement with attached duplicate evidence consisting of VA treatment reports, service treatment records, pages from personnel file, previous rating decisions, web pages, and Statements of the Case.

• Letter from you received April 12, 2010.

• VA genitourinary examination conducted at VAMC Memphis on March 9, 2010.

• Letter from you with attached web pages from http://www.campbell.army.mil/campbell/directorates/DPW/cnvdiv/Pages/Asbestos.aspx received March 16, 2010.

• VA Form 21-0820 'Report of General Information' opening a claim for benefits dated April 8, 2010.

• Contention of a Clear and Unmistakable Error (CUE) received April 30, 2010.

• VA Form 21-4138 'Statement in Support of Claim' received May 4, 2010.

• VA Form 21-4138 'Statement in Support of Claim' opening a new claim for benefits received May 17, 2010.

• VA Form 21-4138 'Statement in Support of Claim' received June 3, 2010.

• VA eye examinations conducted at VAMC Memphis on August 13, 1998 and January 8, 2010.

• VA 21-4138 Your new claim for disability benefits dated May 17, 2010

• Our letter to you, outlining what our responsibilities are and what you could do to assist us to obtain necessary information in order to accurately consider your claim, dated May 24, 2010

• Service treatment, administrative, and dental records, for period, from August 30, 1973 through September 30, 1997

• VA treatment records, Memphis, from August 1998 through June 2010

• VA general medical examination conducted at VAMC Memphis on August 6, 1998.

• Treatment reports from VA Medical Center, Nashville, dated from August 1998; October 2002, and from April 2009 to October 2009.

• Copies of medical evidence, and statements from you received June 7, 2010, July 1, 2010, July 6, 2010, July 12, 2010, and July 16, 2010.

• Rating decision dated June 14, 2010, and notification letter to you dated June 23, 2010

• VA 21-0820 Report of General Information, this is your request for reconsideration of our decision on June 14, 2010, dated July 8, 2010

Exhibit Page 24

Michael Jennings

Page 4 • All other evidence of record.

REASONS FOR DECISION 1. Evaluation of bilateral pes planus with plantar fasciitis and arthritis, currently evaluated as 10 percent disabling. You filed a Notice of Disagreement with our decision of November 27, 2009 which confirmed and continued the 10 percent evaluation for your bilateral foot condition. You contend that you should receive separate evaluations for each of your diagnosed bilateral foot conditions. The medical evidence shows that each of your diagnosed bilateral foot conditions results in the same symptomatology. That is, they all cause you to have pain with use and manipulation of the feet. The provisions of 38 CFR 4.14 precludes us from assigning separate evaluations for various diagnoses that result in the same symptomatology. It is for this reason that we cannot assign separate evaluations for all of your diagnosed bilateral foot condition. VA examination dated May 23, 2009 shows you do not use any assistive devices. You describe pain in your feet as a 6 on a scale of 1 to 10. Flare-ups reportedly occur 6 to 7 times a month, and are exacerbated by prolonged standing. Pain is characterized as sharp and stabbing. Inserts are used. Walking is limited. Physical exam revealed you to have a normal gait. The examiner diagnosed you with mild pes planus of both feet. There was no evidence of abnormal weight bearing. Examination of right and left foot were the same. Physical findings revealed no erythema or swelling of the feet. There was tenderness to palpation over the origination of plantar fascia and medial cord. There was no tenderness throughout all other boney prominences. Dorsiflexion was attainable to 30 degrees and plantar flexion was attainable to 30 degrees. There was no pain on flexion or by inversion or eversion. There was no pain after repeated motion. Dorsalis pedis pulses were normal, and sensory responses are normal. X-Rays revealed mild arthritis of the midfoot of both feet. Plantar fasciitis of right and left foot was diagnosed. Exam shows pes planus and arthritis are also present in both feet, and these disorders are included to reflect this more recent evaluation. For arthritis, a 10 percent evaluation is assigned for painful or limited motion of the feet. For plantar fasciitis, a 10 percent evaluation is assigned for residual pain. And, for pes planus, a 10 percent evaluation is assigned for pain on manipulation and use of the feet. While separate evaluations are not warranted for all of your diagnosed bilateral foot conditions, we have determined that each foot should be evaluated separately. You do not have severe symptoms under the criteria for pes planus to warrant separate 10 percent evaluations. The evaluation criteria for plantar fasciitis only allows for a single compensable evaluation for the condition, and for arthritis, there are no objective findings of painful and limited motion of the midfoot where arthritis is present. To allow for separate compensable evaluations, we have evaluated your bilateral foot conditions angalogous to that of a foot injury. The single 10 percent evaluation for your bilateral foot conditions is increased to a combined evaluation of 20 percent with the assignment

Exhibit Page 25

Michael Jennings

Page 5 of separate 10 percent evaluations under diagnostic code 5284 for that of physical findings characteristic of a moderate foot injury. We did not assign a higher evaluation of 20 percent for each foot because the evidence fails to show you have objective findings characteristic of a moderately severe foot injury. For entitlement to a higher evaluation under the criteria for pes planus, the evidence would have to show you have a severe condition manifested by evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. The evidence fails to show you meet the aforementioned criteria. In fact, your pes planus was assessed as being mild at the May 23, 2009 VA examination. An effective date of April 1, 2009 is assigned for the increased combined evaluation of 20 percent for your bilateral foot disabilities, date of receipt of your claim for increase. 2. Evaluation of calcified granuloma of the lungs (also claimed as lung disorder, low lung volume, and asbestosis) currently evaluated as 0 percent disabling. We granted service connection for calcified granuloma of the lungs because this was shown to be a chronic condition associated with your period of active military service. We assigned a 0 percent evaluation for your disability, and you have disagreed with this determination. You feel your disability is more disabling than the 0 percent evaluation that we assigned. Your disability is evaluated under diagnostic code 6846 (analogous to sarcoidosis). In order for a higher evaluation of 30 percent to be assigned under this diagnostic code, the evidence would have to show pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids. If there is active disease or residuals, we are permitted to evaluate under the evaluation criteria for chronic bronchitis. Post service records cited above are inclusive of Pulmonary Function Test (PFT) of November 29, 2010 which revealed FVC of 96 percent of the amount predicted and FEV-1 of 103 percent of the amount predicted, which would be noncompensable. DLCO(SB), however, was 67 percent of the amount predicted. This would support a 10 percent evaluation. We have therefore increased the evaluation of your disability from 0 percent disabling to 10 percent disabling, by assigning the higher of two evaluations in your favor. We did not assign a higher evaluation of 30 percent because the evidence fails to show you have pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids, nor does the evidence show FEV-1 of 56 to 70 percent of the amount predicted, FEV-1/FVC of 56 to 70 percent of the amount predicted, or DLSO(SB) of 56 to 65 percent of the amount predicted. An effective date of January 7, 2010 is assigned for the higher evaluation of 10 percent for calcified granuloma of the lungs, date of receipt of your reopened claim.

Exhibit Page 26

Michael Jennings

Page 6 REFERENCES: Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains the regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library, or visit us at our web site, www.va.gov.

Exhibit Page 27

Decision Review Officer Decision

Department of Veterans Affairs NASHVILLE REGIONAL OFFICE

Page 3 03/11/2011

NAME OF VETERAN

Michael Jennings VA FILE NUMBER

SOCIAL SECURITY NR

POA

COPY TO

7346 GASTROESOPHAGEAL REFLUX DISEASE

Not Service Connected, Not Incurred/Caused by Service

7913 DIABETES MELLITUS TYPE II


9411 POSTTRAUMATIC STRESS DISORDER (ALSO CLAIMED AS NERVOUS

DISORDER, ANXIETY) Not Service Connected, Not Incurred/Caused by Service

9432 ADDICTION DISORDER

Willful Misconduct, Substance Abuse

9440 ANXIETY DISORDER


9999-9913 DENTAL TRAUMA


DENTAL DECISIONS No record of dental trauma. (FOR DENTAL TREATMENT PURPOSES)

______________________________________ Ron O., DRO

Exhibit Page 30

File Number: JENNINGS, MICHAEL

or, • Renal dysfunction symptoms including: • Albumin constant or recurring with hyalineand granular casts or red blood cells; or, • Hypertension at least 10 percent disabling underdiagnostic code 7101; or, • Transient or slight edema.

● We reviewed the evidence received and determined your service-connected condition(s)hasn't/haven't increased in severity sufficiently to warrant a higher evaluation.A clear andunmistakable error (CUE) is an error that is undebatable, so that reasonable minds couldnot differ. A determination of CUE must be based on the record and the law that existed atthe time of the prior decision. Such error must have been prejudicial to the claimant. Oncea determination is made that there was a CUE in a prior decision that would change theoutcome of that decision that decision must be corrected so as if the former error had notbeen made.The Rating Decision dated August 25, 2000, granted a 10 percent evaluationfor this disease effective October 1, 1997, the day after release from active duty, based onevidence of only an occasional attack of colic without infection or requirement for catheterdrainage. The decision did state that there was no evidence of recurrent stone formation,but the VA records do note at least two documented instances of recurrent stones. However,these records do not indicate you were prescribed long term diet or drug therapy or that youunderwent procedures more than two times per year. Since there is no clear violation ofrating principles or regulations in the assignment of the 10 percent evaluation, there is noclear and unmistakable error. No revision is warranted in the evaluation of this disease at 10percent effective October 1, 1997.

Issue/Contention Percent (%) Continuedbilateral plantar fasciitis with pes planus andarthritis (formerly evaluated as bilateral footcondition, partial loss of arches)

10%

Explanation● Entitlement to an earlier effective date for the evaluation assigned for bilateral plantar

fasciitis with pes planus and arthritis (formerly evaluated as bilateral foot condition, partialloss of arches) has been denied.

● An evaluation of 10 percent is granted whenever the weight-bearing line is over or medial tothe great toe with inward bowing of the tendo achillis, pain on manipulation and use of thefeet. A higher evaluation of 30 percent is not warranted unless there is objective evidence ofmarked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated,swelling on use, and characteristic callosities.

● Clear and unmistakable errors are errors that are undebatable, so that it can be said thatreasonable minds could only conclude that the previous decision was fatally flawed atthe time it was made. A determination that there was a clear and unmistakable error mustbe based on the record and the law that existed at the time of the prior decision. Once adetermination is made that there was a clear and unmistakable error in a prior decisionthat would change the outcome, then that decision must be revised to conform to whatthe decision should have been. In this case, the previous effective date for the disabilityevaluation is continued as no clear and unmistakable error is shown.You contend that a 20percent evaluation for bilateral pes planus (or 10 percent for each foot) should have beenassigned effective October 1, 1997, the day after release from active duty, and not April

Exhibit Page 32


1, 2009, as previously granted. The Decision Review Officer Decision dated March 11,2011, granted a 10 percent evaluation for each foot based on physical findings characteristicof a moderate foot injury effective April 1, 2009, the date VA received your claim foran increased evaluation. Since the medical evidence does not clearly present findingscharacteristic of a moderate foot injury for each foot prior to April 1, 2009, there is no clearand unmistakable error in the effective date assigned for the 10 percent evaluation for eachfoot. Entitlement to an earlier effective date for the evaluation of 10 percent for each foot forbilateral plantar fasciitis with pes planus and arthritis (formerly evaluated as bilateral footcondition, partial loss of arches) is therefore denied.An evaluation of 10 percent for eachfoot under criteria for foot injuries is not assigned unless there is moderate foot injury.

Are You Entitled to Additional Benefits?Did you know you may be eligible for a VA guaranteed mortgage with no down payment(potentially exempt from a funding fee depending on your rating)? For more information aboutthis benefit, or to determine and print your Loan Guaranty Certificate of Eligibility, please visitthe eBenefits website at http://www.ebenefits.va.gov.

If you served overseas in support of a combat operation you may be eligible for mental healthcounseling at no cost to you at the Veteran’s Resource Center. For more information on thisbenefit please visit https://www.myhealth.va.gov/mhv-portal-web/.

The VA provides Blind Rehabilitation services to eligible blind, low vision, or visually impairedVeterans to help them regain their independence and quality of life. The Veteran’s blindness,low vision, or vision impairment does NOT have to be related or caused by military service. If you need help with your vision loss, please contact your nearest Visual Impairment ServicesTeam Coordinator (VIST) at the eye clinic at your nearest VA Medical Center. For moreinformation, go to www.va.gov/blindrehab/.

Evidence ConsideredIn making our decision, we considered:

● VA General Medical Examination done at Memphis on August 6, 1998● Letters informing you what evidence we need to establish entitlement dated May 27, 2015,

and July 31, 2015● VA Form 21-526b Veteran's Supplemental Claim for Compensation, received April 23, 2015● VA Forms 21-4138, Statement in Support of Claim, received April 23, 2015; May 29, 2015;

June 25, 2015; August 4, 2015; August 10, 2015; August 13, 2015; August 16, 2015● Correspondence from you received on April 25, 2015, and August 16, 2015● VA Kidney Disease Examination done at Memphis on August 19, 2015● Treatment reports, VA Medical Center in Memphis, from August 27, 1999 through July 7,

2015

Exhibit Page 33


What You Should Do If You Disagree With Our DecisionFor Compensation Claims:

If you do not agree with our decision, you must complete and return to us the enclosed VA Form21-0958, Notice of Disagreement, in order to initiate your appeal. You have one year from thedate of this letter to appeal the decision. The enclosed VA Form 4107, “Your Rights to AppealOur Decision,” explains your right to appeal.

What is eBenefits?eBenefits provides electronic resources in a self-service environment to Servicemembers,Veterans, and their families. Use of these resources often helps us serve you faster! Through theeBenefits website you can:

● Submit claims for benefits and/or upload documents directly to the VA● Request to add or change your dependents● Update your contact and direct deposit information and view payment history● Request a Veterans Service Officer to represent you● Track the status of your claim or appeal● Obtain verification of military service, civil service preference, or VA benefits● And much more!

Enrolling in eBenefits is easy. Just visit www.eBenefits.va.gov for more information. If yousubmit a claim in the future, consider filing through eBenefits. Filing electronically, especially ifyou participate in our fully developed claim program, may result in a faster decision than if yousubmit your claim through the mail.

If You Have Questions or Need AssistanceIf you have any questions or need assistance with this claim, you may contact us by telephone, e-mail, or letter.

Exhibit Page 34


If you Here is what to do.Telephone Call us at 1-800-827-1000. If you use a Telecommunications Device for

the Deaf (TDD), the Federal number is 711.Use the Internet Send electronic inquiries through the Internet at https://iris.va.gov.

Write VA now uses a centralized mail system. For all writtencommunications, put your full name and VA file number on the letter.Please mail or fax all written correspondence to the appropriate addresslisted on the attached Where to Send Your Written Correspondencechart, below.

In all cases, be sure to refer to your VA file number

If you are looking for general information about benefits and eligibility, you should visit our website at http://www.va.gov, or search the Frequently Asked Questions (FAQs) at http://iris.va.gov.

We sent a copy of this letter to TENNESSEE DEPARTMENT OF VETERANS SERVICES,who you have appointed as your representative. If you have questions or need assistance, youcan also contact your representative.

Thank you for your service,

Regional Office Director

Enclosure(s): VA Form 4107VA Form 21-0958Where to Send Your Written Correspondence

cc: TENNESSEE DEPARTMENT OF VETERANS SERVICES

Exhibit Page 35


VA Regional Office

110 9th Ave S.

Nashville TN 37203

MICHAEL JENNINGS

VA File Number

Represented by:

TENNESSEE DEPARTMENT OF VETERANS SERVICES

Rating Decision

August 26, 2015

INTRODUCTION

The records reflect that you are a veteran of the Vietnam Era, Peacetime and Gulf War Era. You

served in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 to

September 30, 1997. You filed a new claim for benefits that was received on April 23, 2015. Based

on a review of the evidence listed below, we have made the following decision(s) on your claim.

DECISION

1. Evaluation of nephrolithiasis (also claimed as kidney stones, hydronephrosis, and hydroureter),

which is currently 10 percent disabling, is continued. No revision is warranted in the evaluation of

this disease at 10 percent effective October 1, 1997.

2. Entitlement to an earlier effective date for the evaluation of 10 percent for each foot for bilateral

plantar fasciitis with pes planus and arthritis (formerly evaluated as bilateral foot condition, partial

loss of arches) based on an alleged clear and unmistakable error is denied.

EVIDENCE

Exhibit Page 36

MICHAEL JENNINGS

Page 2 of 4

VA Forms 21-4138, Statement in Support of Claim, received April 23, 2015; May 29, 2015;

June 25, 2015; August 4, 2015; August 10, 2015; August 13, 2015; August 16, 2015

VA Form 21-526b Veteran's Supplemental Claim for Compensation, received April 23, 2015

Correspondence from you received on April 25, 2015, and August 16, 2015

Letters informing you what evidence we need to establish entitlement dated May 27, 2015, and

July 31, 2015

Treatment reports, VA Medical Center in Memphis, from August 27, 1999 through July 7,

2015

VA General Medical Examination done at Memphis on August 6, 1998

VA Kidney Disease Examination done at Memphis on August 19, 2015

REASONS FOR DECISION

1. Evaluation of nephrolithiasis (also claimed as kidney stones, hydronephrosis, and

hydroureter) currently evaluated as 10 percent disabling. Whether the evaluation assigned

of 10 percent for nephrolithiasis effective October 1, 1997, was clearly and unmistakably

erroneous.

The evaluation of nephrolithiasis (also claimed as kidney stones, hydronephrosis, and hydroureter)

is continued as 10 percent disabling. {38 CFR §3.321(a); 38 CFR §3.321(b)(1)} We reviewed the

evidence received and determined your service-connected condition(s) hasn't/haven't increased in

severity sufficiently to warrant a higher evaluation.

We have assigned a 10 percent evaluation for your nephrolithiasis (also claimed as kidney stones,

hydronephrosis, and hydroureter) based on:

• Only an occasional attack of colic

Additional symptom(s) include:

• No catheter drainage required

• No infection noted

• Recurrent stone formation

A higher evaluation of 20 percent is not warranted for nephrolithiasis unless the evidence shows:

• Frequent attacks of colic, requiring catheter drainage.

Additionally, a higher evaluation of 30 percent is not warranted for nephrolithiasis unless the

evidence shows:

• Recurrent stone formation requiring one or more of the following:

• Diet therapy; or,

• Drug therapy; or,

• Invasive or non-invasive procedures more than two times/year; or,

• Renal dysfunction symptoms including:

Exhibit Page 37

MICHAEL JENNINGS

Page 3 of 4

• Albumin constant or recurring with hyaline and granular casts or red blood cells; or,

• Hypertension at least 10 percent disabling under diagnostic code 7101; or,

• Transient or slight edema.

A clear and unmistakable error (CUE) is an error that is undebatable, so that reasonable minds

could not differ. A determination of CUE must be based on the record and the law that existed at

the time of the prior decision. Such error must have been prejudicial to the claimant. Once a

determination is made that there was a CUE in a prior decision that would change the outcome of

that decision that decision must be corrected so as if the former error had not been made.

The Rating Decision dated August 25, 2000, granted a 10 percent evaluation for this disease

effective October 1, 1997, the day after release from active duty, based on evidence of only an

occasional attack of colic without infection or requirement for catheter drainage. The decision did

state that there was no evidence of recurrent stone formation, but the VA records do note at least

two documented instances of recurrent stones. However, these records do not indicate you were

prescribed long term diet or drug therapy or that you underwent procedures more than two times

per year. Since there is no clear violation of rating principles or regulations in the assignment of the

10 percent evaluation, there is no clear and unmistakable error. No revision is warranted in the

evaluation of this disease at 10 percent effective October 1, 1997.

2. Entitlement to an earlier effective date for the evaluation of 10 percent for each foot

assigned to the service connected bilateral plantar fasciitis with pes planus and arthritis

(formerly evaluated as bilateral foot condition, partial loss of arches) based on an alleged

clear and unmistakable error.

Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable

minds could only conclude that the previous decision was fatally flawed at the time it was made. A

determination that there was a clear and unmistakable error must be based on the record and the

law that existed at the time of the prior decision. Once a determination is made that there was a

clear and unmistakable error in a prior decision that would change the outcome, then that decision

must be revised to conform to what the decision should have been. In this case, the previous

effective date for the disability evaluation is continued as no clear and unmistakable error is

shown.

You contend that a 20 percent evaluation for bilateral pes planus (or 10 percent for each foot)

should have been assigned effective October 1, 1997, the day after release from active duty, and

not April 1, 2009, as previously granted. The Decision Review Officer Decision dated March 11,

2011, granted a 10 percent evaluation for each foot based on physical findings characteristic of a

moderate foot injury effective April 1, 2009, the date VA received your claim for an increased

evaluation. Since the medical evidence does not clearly present findings characteristic of a

moderate foot injury for each foot prior to April 1, 2009, there is no clear and unmistakable error in

the effective date assigned for the 10 percent evaluation for each foot. Entitlement to an earlier

effective date for the evaluation of 10 percent for each foot for bilateral plantar fasciitis with pes

Exhibit Page 38

MICHAEL JENNINGS

Page 4 of 4

planus and arthritis (formerly evaluated as bilateral foot condition, partial loss of arches) is

therefore denied.

An evaluation of 10 percent is granted whenever the weight-bearing line is over or medial to the

great toe with inward bowing of the tendo achillis, pain on manipulation and use of the feet. A

higher evaluation of 30 percent is not warranted unless there is objective evidence of marked

deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use,

and characteristic callosities. An evaluation of 10 percent for each foot under criteria for foot

injuries is not assigned unless there is moderate foot injury.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains the

regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits.

For additional information regarding applicable laws and regulations, please consult your local

library, or visit us at our web site, www.va.gov.

Exhibit Page 39

Rating Decision Department of Veterans Affairs

VA Regional Office Page 1 of 4

08/26/2015

NAME OF VETERAN

MICHAEL JENNINGS

VA FILE NUMBER

SOCIAL SECURITY

POA

TENNESSEE

DEPARTMENT OF

VETERANS SERVICES

COPY TO

ACTIVE DUTY

EOD RAD BRANCH CHARACTER OF DISCHARGE

08/30/1973 11/29/1976 Army Honorable

11/05/1979 09/30/1997 Army Honorable

LEGACY CODES

ADD’L SVC

CODE

COMBAT

CODE

SPECIAL

PROV CDE FUTURE EXAM

DATE

1 4 None

JURISDICTION: New Claim Received 04/23/2015

ASSOCIATED CLAIM(s): 020; New/Increase; 04/23/2015

SUBJECT TO COMPENSATION (1. SC)

5010-5010 ARTHRITIS, LEFT KNEE

Service Connected, Peacetime, Incurred

Static Disability

10% from 10/01/1997

5284-5276 BILATERAL PLANTAR FASCIITIS WITH PES PLANUS AND ARTHRITIS

(FORMERLY EVALUATED AS BILATERAL FOOT CONDITION, PARTIAL

LOSS OF ARCHES)


Static Disability

10% from 10/01/1997 to 04/01/2009

7508 NEPHROLITHIASIS (ALSO CLAIMED AS KIDNEY STONES,

HYDRONEPHROSIS, AND HYDROURETER)


Static Disability

10% from 10/01/1997

7804 SCARS (2), BILATERAL BREASTS, STATUS POST BILATERAL

SUBCUTANEOUS MASTECTOMY


Static Disability

0% from 10/01/1997

10% from 10/23/2008

6012 BILATERAL GLAUCOMA


Static Disability

10% from 03/30/2009

Exhibit Page 40



08/26/2015

NAME OF VETERAN

MICHAEL JENNINGS

VA FILE NUMBER

SOCIAL SECURITY NR

POA

TENNESSEE

DEPARTMENT OF

VETERANS SERVICES

COPY TO

5299-5284 PES PLANUS OF THE RIGHT FOOT WITH PLANTAR FASCIITIS AND

ARTHRITIS (PREVIOUSLY EVALUATED TOGETHER WITH LEFT FOOT

DISABILITIES UNDER DIAGNOSTIC CODE 5276)


Static Disability

10% from 04/01/2009

5299-5284 PES PLANUS OF LEFT FOOT WITH PLANTAR FASCIITIS AND

ARTHRITIS (PREVIOUSLY EVALUATED TOGETHER WITH RIGHT FOOT

DISABILITIES UNDER DIAGNOSTIC CODE 5276)


Static Disability

10% from 04/01/2009

6699-6600 CALCIFIED GRANULOMA OF THE LUNGS (ALSO CLAIMED AS LUNG

DISORDER, LOW LUNG VOLUME, AND ASBESTOSIS) (PREVIOUSLY

EVALUATED UNDER DIAGNOSTIC CODE 6899-6846) [Asbestos]

Service Connected, Gulf War, Incurred

Static Disability

0% from 10/01/1997

10% from 01/07/2010

7805 STATUS POST ARTHROSCOPY, SCARS (2), LEFT KNEE


Static Disability

0% from 10/01/1997

COMBINED EVALUATION FOR COMPENSATION :

30% from 10/01/1997 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)

40% from 10/23/2008 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)

50% from 04/01/2009 (Bilateral factor of 2.7 Percent for diagnostic codes 5010, 5284, 5284)

NOT SERVICE CONNECTED/NOT SUBJECT TO COMPENSATION (8.NSC Peacetime, Vietnam Era,

Gulf War)

6027 CATARACTS


Original Date of Denial: 02/18/2010

6099-6009 EYE CONDITION, OCULAR HYPERTENSION, MYOPIA


6399-6313 LEAD POISONING

Not Service Connected, No Diagnosis


6514 SINUSITIS

Exhibit Page 41



08/26/2015

NAME OF VETERAN

MICHAEL JENNINGS

VA FILE NUMBER

SOCIAL SECURITY NR

POA

TENNESSEE

DEPARTMENT OF

VETERANS SERVICES

COPY TO



6846 SARCOIDOSIS AND SECONDARY CONDITIONS



6847 SLEEP APNEA



7101 HIGH BLOOD PRESSURE



7346 GASTROESOPHAGEAL REFLUX DISEASE



7399-7323 DIVERTICULA DISEASE



7913 DIABETES MELLITUS TYPE II ASSOCIATED WITH CALCIFIED

GRANULOMA OF THE LUNGS (ALSO CLAIMED AS LUNG DISORDER,

LOW LUNG VOLUME, AND ASBESTOSIS) (PREVIOUSLY EVALUATED

UNDER DIAGNOSTIC CODE 6899-6846)


Static Disability


9411 POSTTRAUMATIC STRESS DISORDER (ALSO CLAIMED AS NERVOUS

DISORDER, ANXIETY)



9432 ADDICTION DISORDER

Willful Misconduct, Substance Abuse

9440 ANXIETY DISORDER


9999-9913 DENTAL TRAUMA



DENTAL DECISIONS

Exhibit Page 42



08/26/2015

NAME OF VETERAN

MICHAEL JENNINGS

VA FILE NUMBER

SOCIAL SECURITY NR

POA

TENNESSEE

DEPARTMENT OF

VETERANS SERVICES

COPY TO

No record of dental trauma. (FOR DENTAL TREATMENT PURPOSES).

______________________________________

"I certify that I have reviewed and electronically

signed this decision” Paul M., DRO

Exhibit Page 43


MICHAEL JENNINGS P O BOX 54192 MILLINGTON TN 38054

In Reply Refer To: 320/215/TK

M Jennings

Dear Mr. Jennings: You have filed a Notice of Disagreement with our action. This is the first step in appealing to the Board of Veterans’ Appeals (BVA). This letter and enclosures contain very important information concerning your appeal. Statement of the Case

We have enclosed a Statement of the Case, a summary of the law and evidence concerning your claim. This summary will help you to make the best argument to the BVA on why you think our decision should be changed.

What You Need To Do

To complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appeal to the Board of Veterans’ Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions. Your appeal should address: the benefit you want the facts in the Statement of the Case with which you disagree; and the errors that you believe we made in applying the law.

When You Need To Do It

You must file your appeal with this office within 60 days from the date of this letter or within the remainder, if any, of the one-year period from the date of the letter notifying you of the action that you have appealed. If we do not hear from you within this period, we will close your case. If you need more time to file your appeal, you should request more time before the time limit for filing your appeal expires. See item 5 of the instructions in VA Form 9, Appeal to Board of Veterans’ Appeals.

Exhibit Page 47

Hearings

You may have a hearing before we send your case to the BVA. If you tell us that you want a hearing, we will arrange a time and a place for the hearing. VA will provide the hearing room, the hearing official, and a transcript of the hearing for the record. VA cannot pay any other expenses of the hearing. You may also have a hearing before the BVA, as noted on the enclosed VA Form 9, Appeal to the Board of Veterans’ Appeals. Do not delay filing your appeal if you request a hearing. Your request for a hearing does not extend the time to file your appeal.

Representation

If you do not have a representative, it is not too late to choose one. An accredited representative of a recognized service organization may represent you in your claim for VA benefits without charge. An accredited attorney or an accredited agent may also represent you before VA, and may charge you a fee for services performed after the filing of a notice of disagreement. In certain cases, VA will pay your accredited agent or attorney directly from your past due benefits. For more information on the accreditation process and fee agreements (including filing requirements), you and/or your representative should review 38 U.S.C. § 5904 and 38 C.F.R. § 14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find the necessary power of attorney forms on this website, or if you ask us, we can send you the forms. You can also find the names of accredited attorneys, agents and service organization representatives on this website.

What We Will Do

After we receive your appeal, we will send your case to the BVA in Washington, DC for a decision. The BVA will base its decision on an independent review of the entire record, including the transcript of the hearing, if you have a hearing.

Sincerely yours, RO Director VA Regional Office

Enclosure(s): Centralized Mail Address Enclosure

VA Form 9 CC: S A Kendall, Atty

2727 Pine Street, STE 6 Boulder, CO 80302

Exhibit Page 48

Exhibit Page 49

Statement of the Case Department of Veterans Affairs NASHVILLE REGIONAL OFFICE

Page 1 02/07/2017

NAME OF VETERAN

M Jennings VA FILE NUMBER SOCIAL SECURITY NR

POA

S A Kendall, Atty ISSUE: 1. Evaluation of nephrolithiasis (also claimed as kidney stones, hydronephrosis, and hydroureter)

currently evaluated as 10 percent disabling. Whether the evaluation assigned of 10 percent for nephrolithiasis effective October 1, 1997, was clearly and unmistakably erroneous.

2. Evaluation of 10 percent for each foot assigned to the service connected bilateral plantar fasciitis with pes planus and arthritis (formerly evaluated as bilateral foot condition, partial loss of arches).

3. Earlier effective date of October 1, 1997, for the increased evaluation for service connected bilateral plantar fasciitis.

EVIDENCE: VA Forms 21-4138, Statement in Support of Claim, received April 23, 2015; May 29, 2015;

June 25, 2015; August 4, 2015; August 10, 2015; August 13, 2015; August 16, 2015 VA Form 21-526b Veteran's Supplemental Claim for Compensation, received April 23, 2015 Correspondence from you received on April 25, 2015, and August 16, 2015 Letters informing you what evidence we need to establish entitlement dated May 27, 2015,

and July 31, 2015 Treatment reports, VA Medical Center in Memphis, from August 27, 1999 through July 7,

2015 VA General Medical Examination done at Memphis on August 6, 1998 VA Kidney Disease Examination done at Memphis on August 19, 2015 Rating Decisions dated August 25, 2000; March 11, 2011; and August 26, 2015 VA Examinations completed on June 6, 2000; and May 23, 2009

ADJUDICATIVE ACTIONS: Military Service: 08/30/1973 to 11/29/1976 Honorable Military Service: 11/05/1979 to 09/30/1997 Honorable 04-23-2015 Claim received. 08-26-2015 Claim considered based on all the evidence of record. 08-31-2015 Claimant notified of decision. 09-04-2015 Notice of Disagreement received. 11-30-2015 De Novo Review election received from appellant.

Exhibit Page 50


Page 2 02/07/2017

NAME OF VETERAN

M Jennings VA FILE NUMBER

SOCIAL SECURITY NR

POA

S A Kendall, Atty 02-07-2017 De Novo Review performed based on all the evidence of record. PERTINENT LAWS; REGULATIONS; RATING SCHEDULE PROVISIONS: Unless otherwise indicated, the symbol “§” denotes a section from title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans’ Relief. Title 38 contains the regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits. 38 USC § 5102 - APPLICATION FORMS FURNISHED UPON REQUEST; NOTICE TO CLAIMANTS OF INCOMPLETE APPLICATIONS (a) Furnishing Forms.— Upon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit. (b) Incomplete Applications.— If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. (c) Time Limitation.— (1)If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. (2)This subsection shall not apply to any application or claim for Government life insurance benefits. 38 USC § 5103 - NOTICE TO CLAIMANTS OF REQUIRED INFORMATION AND EVIDENCE (a) Required Information and Evidence.— (1)The Secretary shall provide to the claimant and the claimant’s representative, if any, by the most effective means available, including electronic communication or notification in writing, notice of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. (2) (A)The Secretary shall prescribe in regulations requirements relating to the contents of notice to be provided under this subsection. (B)The regulations required by this paragraph— (i)shall specify different contents for notice based on whether the claim concerned is an original claim, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;

Exhibit Page 51


Page 3 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (ii)shall provide that the contents for such notice be appropriate to the type of benefits or services sought under the claim; (iii)shall specify for each type of claim for benefits the general information and evidence required to substantiate the basic elements of such type of claim; and (iv)shall specify the time period limitations required pursuant to subsection (b). (b) Time Limitation.— (1)In the case of information or evidence that the claimant is notified under subsection (a) is to be provided by the claimant, such information or evidence must be received by the Secretary within one year from the date such notice is sent. (2)This subsection shall not apply to any application or claim for Government life insurance benefits. (3)Nothing in paragraph (1) shall be construed to prohibit the Secretary from making a decision on a claim before the expiration of the period referred to in that subsection. (4)Nothing in this section shall require the Secretary to provide notice for a subsequent claim that is filed while a previous claim is pending if the notice previously provided for such pending claim— (A)provides sufficient notice of the information and evidence necessary to substantiate such subsequent claim; and (B)was sent within one year of the date on which the subsequent claim was filed. (5) (A)This section shall not apply to any claim or issue where the Secretary may award the maximum benefit in accordance with this title based on the evidence of record. (B)For purposes of this paragraph, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with section 5110 of this title. 38 USC § 5106 - FURNISHING OF INFORMATION BY OTHER AGENCIES The head of any Federal department or agency shall provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto. The cost of providing information to the Secretary under this section shall be borne by the department or agency providing the information. 38 USC § 5107 - CLAIMANT RESPONSIBILITY; BENEFIT OF THE DOUBT (a) Claimant Responsibility.— 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. (b) Benefit of the Doubt.— 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

Exhibit Page 52


Page 4 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. §3.159 Department of Veterans Affairs assistance in developing claims.

(a) Definitions. For purposes of this section, the following definitions apply:

(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.

(3) Substantially complete application means an application containing the claimant's name; his or her relationship to the veteran, if applicable; sufficient service information for VA to verify the claimed service, if applicable; the benefit claimed and any medical condition(s) on which it is based; the claimant's signature; and in claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income.

(4) For purposes of paragraph (c)(4)(i) of this section, event means one or more incidents associated with places, types, and circumstances of service giving rise to disability.

(5) Information means non-evidentiary facts, such as the claimant's Social Security number or address; the name and military unit of a person who served with the veteran; or the name and address of a medical care provider who may have evidence pertinent to the claim.

(b) VA's duty to notify claimants of necessary information or evidence.

(1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. (hereafter in this paragraph referred to as the “notice") In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. The information and evidence that the claimant is informed that the claimant is to provide must be provided within one year of the date of the notice. If VA does not receive the necessary information and evidence requested from the claimant within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. If the claimant has not responded to the notice within 30 days, VA may decide the claim prior to the expiration of the one-year period based on all the information and evidence contained in the file, including information and evidence it has obtained on behalf of the claimant and any VA medical examinations or medical opinions. If VA does so, however, and the claimant subsequently

Exhibit Page 53


Page 5 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty provides the information and evidence within one year of the date of the notice, VA must readjudicate the claim. (Authority: 38 U.S.C. 5103)

(2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. (Authority: 38 U.S.C. 5102(b), 5103A(3))

(3) No duty to provide the notice described in paragraph (b)(1) of this section arises:

(i) Upon receipt of a Notice of Disagreement; or

(ii) When, as a matter of law, entitlement to the benefit claimed cannot be established. (Authority: 38 U.S.C. 5103(a), 5103A(a)(2))

(c) VA's duty to assist claimants in obtaining evidence. Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. In addition, VA will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to reopen a finally decided claim. VA will not pay any fees charged by a custodian to provide records requested.

(1) Obtaining records not in the custody of a Federal department or agency. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records. (Authority: 38 U.S.C. 5103A(b))

(2) Obtaining records in the custody of a Federal department or agency. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing

Exhibit Page 54


Page 6 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records. (Authority: 38 U.S.C. 5103A(b))

(3) Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. (Authority: 38 U.S.C. 5103A(c))

(4) Providing medical examinations or obtaining medical opinions.

(i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:

(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;

(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §3.309, §3.313, §3.316, and §3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

Exhibit Page 55


Page 7 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (ii) Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service.

(iii) Paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. (Authority: 38 U.S.C. 5103A(d))

(d) Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:

(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;

(2) Claims that are inherently incredible or clearly lack merit; and

(3) An application requesting a benefit to which the claimant is not entitled as a matter of law. (Authority: 38 U.S.C. 5103A(a)(2))

(e) Duty to notify claimant of inability to obtain records.

(1) If VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. In either case, the notice must contain the following information:

(i) The identity of the records VA was unable to obtain;

(ii) An explanation of the efforts VA made to obtain the records;

(iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and

(iv) A notice that the claimant is ultimately responsible for providing the evidence.

(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to

Exhibit Page 56


Page 8 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty obtain, VA will request that the claimant obtain the records and provide them to VA. (Authority: 38 U.S.C. 5103A(b)(2))

(f) For the purpose of the notice requirements in paragraphs (b) and (e) of this section, notice to the claimant means notice to the claimant or his or her fiduciary, if any, as well as to his or her representative, if any. (Authority: 38 U.S.C. 5102(b), 5103(a))

(g) The authority recognized in subsection (g) of 38 U.S.C. 5103A is reserved to the sole discretion of the Secretary and will be implemented, when deemed appropriate by the Secretary, through the promulgation of regulations. (Authority: 38 U.S.C. 5103A(g))

§3.102 Reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a))

§3.2600 Review of benefit claims decisions.

(a) A claimant who has filed a timely Notice of Disagreement with a decision of an agency of original jurisdiction on a benefit claim has a right to a review of that decision under this section. The review will be conducted by a Veterans Service Center Manager, Pension Management Center Manager, or Decision Review Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed.

(b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after

Exhibit Page 57


Page 9 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.

(c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under §3.103(c).

(d) The reviewer may grant a benefit sought in the claim notwithstanding §3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.

(e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see §3.105(a)).

(f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the traditional appellate process by issuing a Statement of the Case.

(g) This section applies to all claims in which a Notice of Disagreement is filed on or after June 1, 2001.

3.104 Finality of decisions.

(a) The decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §3.105 and §3.2600 of this part.

(b) Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error. §19.32 Closing of appeal for failure to respond to Statement of the Case. The agency of original jurisdiction may close the appeal without notice to an appellant or his or her representative for failure to respond to a Statement of the Case within the period allowed.

Exhibit Page 58


Page 10 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty However, if a Substantive Appeal is subsequently received within the 1-year appeal period (60-day appeal period for simultaneously contested claims), the appeal will be considered to be reactivated. (Authority: 38 U.S.C. 7105(d)(3)) §20.302 Rule 302. Time limit for filing... (a) Notice of Disagreement. Except in the case of simultaneously contested claims, a claimant,or his or her representative, must file a Notice of Disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. (Authority: 38 U.S.C. 7105(b)(1)) (b) Substantive Appeal. (1) General. Except in the case of simultaneously contested claims, a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the Statement of the Case will be presumed to be the same as the date of the Statement of the Case and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. (2) Special rule in certain cases where additional evidence is submitted. Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within 1 year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with §19.31 of this title, that the claimant be furnished a Supplemental Statement of the Case, then the time to submit a Substantive Appeal shall end not sooner than 60 days after such Supplemental Statement of the Case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the 1-year appeal period. (Authority: 38 U.S.C. 7105 (b)(1), (d)(3).) (c) Response to Supplemental Statement of the Case. Where a Supplemental Statement of the Case is furnished, a period of 30 days from the date of mailing of the Supplemental Statement of the Case will be allowed for response. The date of mailing of the Supplemental Statement of the Case will be presumed to be the same as the date of the Supplemental Statement of the Case for purposes of determining whether a response has been timely filed. Provided a Substantive Appeal has been timely filed in accordance with paragraph (b) of this section, the response to a Supplemental Statement of the Case is optional and is not required for the perfection of an appeal. (Authority: 38 U.S.C. 7105(d)(3)) 3.103 Procedural due process and appellate rights.

Exhibit Page 59


Page 11 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice:

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in Sec. 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay).

Exhibit Page 60


Page 12 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a). (Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

(c) The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician's observations will be read into the record. (Authority: 38 U.S.C. 501(a))

(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.

Exhibit Page 61


Page 13 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim. (f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. (Authority: 38 U.S.C. 501, 1115, 1506, 5104.) §3.400 (10-06) General (all) Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. (Authority: 38 U.S.C. 5110(a)) (a) Unless specifically provided. On basis of facts found. (b) Disability benefits-(1) Disability pension ( 3.3). An award of disability pension may not be effective prior to the date entitlement arose. (i) Claims received prior to October 1, 1984. Date of receipt of claim or date on which the veteran became permanently and totally disabled, if claim is filed within one year from such date, whichever is to the advantage of the veteran. (ii) Claims received on or after October 1, 1984. (A) Except as provided in paragraph (b)(1)(ii)(B) of this section, date of receipt of claim. (B) If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of 3.342(a) do not apply. (2) Disability compensation-(i) Direct service connection ( 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.

Exhibit Page 62


Page 14 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (ii) Presumptive service connection ( 3.307, 3.308, 3.309). Date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. Where the requirements for service connection are met during service, the effective date will be the day following separation from service if there was continuous active service following the period of service on which the presumption is based and a claim is received within 1 year after separation from active duty. (c) Death benefits-(1) Death in service (38 U.S.C. 5110(j), Pub. L. 87-825) ( 3.4(c), 3.5(b)). First day of the month fixed by the Secretary concerned as the date of actual or presumed death, if claim is received with 1 year after the date the initial report of actual death or finding of presumed death was made; however benefits based on a report of actual death are not payable for any period for which the claimant has received, or is entitled to receive an allowance, allotment, or service pay of the veteran. (2) Service-connected death after separation from service (38 U.S.C. 5110(d), Pub. L. 87-825) ( 3.4(c), 3.5(b)). First day of the month in which the veteran's death occurred if claim is received within 1 year after the date of death; otherwise, date of receipt of claim. (3) Nonservice-connected death after separation from service. (i) For awards based on claims received prior to October 1, 1984, or on or after December 10, 2004, first day of the month in which the veteran's death occurred if claim is received within one year after the date of death; otherwise, date of receipt of claim. (ii) For awards based on claims received between October 1, 1984, and December 9, 2004, first day of the month in which the veteran's death occurred if claim is received within 45 days after the date of death; otherwise, date of receipt of claim. (Authority: 38 U.S.C. 5110(d)) (4) Dependency and indemnity compensation-(i) Deaths prior to January 1, 1957 ( 3.702). Date of receipt of election. (ii) Child (38 U.S.C. 5110(e), Pub. L. 87-835). First day of the month in which entitlement arose if claim is received within 1 year after the date of entitlement; otherwise, date of receipt of claim. (iii) Deaths on or after May 1, 1957 (in-service waiver cases) ( 3.5(b)(3) and 3.702). Date of receipt of election. (See 3.114(a)). (d) [Reserved] (e) Apportionment ( 3.450 through 3.461, 3.551). On original claims, in accordance with the facts found. On other than original claims from the first day of the month following the month in which: (1) Claim is received for apportionment of a veteran's award, except that where payments to him (her) have been interrupted, apportionment will be effective the day following date of last payment if a claim for apportionment is received within 1 year after that date; (2) Notice is received that a child included in the surviving spouse's award is not in the surviving spouse's custody, except that where payments to the surviving spouse have been interrupted, apportionment will be effective the day following date of last payment if such notice is received within 1 year after that date. (f) Federal employees' compensation cases ( 3.708). Date authorized by applicable law, subject to any payments made by the Office of Workers' Compensation Programs under the Federal Employees' Compensation Act over the same period of time.

Exhibit Page 63


Page 15 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (g) Correction of military records (38 U.S.C. 5110(i); Pub. L. 87-825). Where entitlement is established because of the correction, change or modification of a military record, or of a discharge or dismissal, by a Board established under 10 U.S.C. 1552 or 1553, or because of other corrective action by competent military naval, or air authority, the award will be effective from the latest of these dates: (1) Date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) Date of receipt of claim if claim was disallowed; or (3) One year prior to date of reopening of disallowed claim. (h) Difference of opinion ( 3.105). (1) As to decisions not final prior to receipt of an application for reconsideration or to reopen, or prior to reconsideration on Department of Veterans Affairs initiative, the date from which benefits would have been payable if the former decision had been favorable. (2) As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) prior to receipt of an application for reconsideration or to reopen, the date of receipt of such application or the date entitlement arose, whichever is later. (3) As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) and reconsideration is undertaken solely on Department of Veterans Affairs initiative, the date of Central Office approval authorizing a favorable decision or the date of the favorable Board of Veterans Appeals decision. (4) Where the initial determination for the purpose of death benefits is favorable, the commencing date will be determined without regard to the fact that the action may reverse, on a difference of opinion, an unfavorable decision for disability purposes by an adjudicative agency other than the Board of Veterans Appeals, which was in effect at the date of the veteran's death. (i) Disability or death due to hospitalization, etc. (38 U.S.C. 5110(c), (d); Public Law 87-825; 3.358, 3.361, and 3.800.) (1) Disability. Date injury or aggravation was suffered if claim is received within 1 year after that date; otherwise, date of receipt of claim. (2) Death. First day of month in which the veteran's death occurred if a claim is received within 1 year following the date of death; otherwise, date of receipt of claim. (j) Election of Department of Veterans Affairs benefits ( 3.700 series). (1) Unless otherwise provided, the date of receipt of election, subject to prior payments. (2) July 1, 1960, as to pension payable under Pub. L. 86-211, where pension is payable for June 30, 1960, under the law in effect on that date, including an award approved after that date, if the election is filed within (generally) 120 days from date of notice of the award. The award will be subject to prior payments over the same period of time. (3) January 1, 1965, as to pension payable under Pub. L. 86-211 (73 Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility for pension on June 30, 1960, under the law in effect on that date and an election if filed prior to May 1, 1965. (4) January 1, 1965, as to pension payable under Pub. L. 86-211 (73 Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility on that date for pension on the basis of service in the Indian wars or Spanish-American War and an election is filed prior to May 1, 1965. (5) January 1, 1969, as to pension payable under Pub. L. 86-211 (73 Stat. 432), as amended by Pub. L. 90-275 (82 Stat. 64), if there was basic eligibility for pension on June 30, 1960, under the law in effect on that date and an election is filed prior to May 1, 1969.

Exhibit Page 64


Page 16 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (6) August 1, 1972, as to pension payable under Pub. L. (73 Stat. 432) as amended by Pub. L. 92-328 (86 Stat. 393) if there was basic eligibility on that date based on death of a veteran of the Spanish-American War and an election is filed prior to December 1, 1972. (k) Error ( 3.105). Date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. (l) Foreign residence. (See 3.653). (m) Forfeiture ( 3.901, 3.902). Day following date of last payment on award to payee who forfeited. (n) Guardian. Day following date of last payment to prior payee or fiduciary. Note: Award to guardian shall include amounts withheld for possible apportionments as well as money in Personal Funds of Patients. (o) Increases (38 U.S.C. 5110(a) and 5110(b)(2), Pub. L. 94-71, 89 Stat. 395; 3.109, 3.156, 3.157)-(1) General. Except as provided in paragraph (o)(2) of this section and 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. (p) Liberalizing laws and Department of Veterans Affairs issues. See 3.114. (q) New and material evidence ( 3.156) other than service department records. (1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See 20.1103, 20.1104 and 20.1304(b)(1) of this chapter. (2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later. (r) Reopened claims. ( 3.109, 3.156, 3.157, 3.160(e)) Date of receipt of claim or date entitlement arose, whichever is later, except as provided in 20.1304(b)(1) of this chapter. (Authority: 38 U.S.C. 501) (s) Renouncement ( 3.106). Except as provided in 3.106(c), date of receipt of new claim. (t) Whereabouts now known. (See 3.158(c).) (u) Void, annulled or terminated marriage of a child (38 U.S.C. 5110 (a), (k), (l); Pub. L. 93-527, 88 Stat. 1702; 3.55)-(1) Void. Date the parties ceased to cohabit or date of receipt of claim, whichever is later. (2) Annulled. Date the decree of annulment became final if claim is filed within 1 year after that date; otherwise date of receipt of claim. (3) Death. Date of death if claim is filed within 1 year after that date; otherwise date of receipt of claim. Benefits are not payable unless the provisions of 3.55(b) of this part are met. (4) Divorce. Date the decree became final if claim is filed within 1 year of that date; otherwise date of receipt of claim. Benefits are not payable unless the provisions of 3.55(b) of this part are met. (v) Termination of remarriage of surviving spouse (38 U.S.C. 5110(a), (k); 38 U.S.C. 103(d) and 3010(l) effective January 1, 1971; 3.55)-(1) Void. Date the parties ceased to cohabit or date of receipt of claim, whichever is the later. (2) Annulled. Date the decree of annulment became final if claim is filed within 1 year after that date; otherwise date of receipt of claim.

Exhibit Page 65


Page 17 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty (3) Death. Date of death if claim is filed within 1 year after that date; otherwise date of receipt of claim. Benefits are not payable unless the provisions of 3.55(a) of this part are met. (4) Divorce. Date the decree became final if claim is filed within 1 year after that date; otherwise date of receipt of claim. Benefits are not payable unless the provisions of 3.55(a) of this part are met. (w) Termination of relationship or conduct resulting in restriction on payment of benefits (38 U.S.C. 5110(m), effective January 1, 1971; 3.50(b)(2) and 3.55). Date of receipt of application filed after termination of relationship and after December 31, 1970. Benefits are not payable unless the provisions of 3.55(a), as applicable, are met. (x) Effective date of determination of incompetency ( 3.353). Date of rating of incompetency. (Not applicable to an incompetency determination made for insurance purposes under 38 U.S.C. 1922). (y) Effective date of determination restoring competency ( 3.353). Date shown by evidence of record that competency was regained. (z) Claims based on service in the Women's Air Forces Service Pilots (WASP), or on service in a similarly situated group (Pub. L. 95-202). (1) Original claim: Date of receipt of claim or date entitlement arose, whichever is later, or as otherwise provided under this section (e.g., paragraph (b)(1) of this section) except that no benefits shall be awarded for any period prior to November 23, 1977. (2) Reopened claim: Latest of the following dates: (i) November 23, 1977. (ii) Date entitlement arose. (iii) One year prior to date of receipt of reopened claim. §3.321 General rating considerations. (a) Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and death pension, and in eligibility determinations. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. (Authority: 38 U.S.C. 1155) (b) Exceptional cases: (1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Chief Benefits Director or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability

Exhibit Page 66


Page 18 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. §4.1 Essentials of evaluative rating This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. §4.2 Interpretation of examination reports Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. §4.3 Resolution of reasonable doubt It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter. §4.6 Evaluation of evidence The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each

Exhibit Page 67


Page 20 02/07/2017

NAME OF VETERAN

M Jennings VA FILE NUMBER SOCIAL SECURITY NR

POA

S A Kendall, Atty (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. §4.59 Painful motion With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. §4.71a (5284) Schedule of ratings-musculoskeletal system 5284 Foot injuries, other: Severe 30 Moderately severe 20 Moderate 10

Exhibit Page 69


Page 21 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty Note: With actual loss of use of the foot, rate 40 percent. §4.71a (5276) Schedule of ratings-musculoskeletal system 5276 Flatfoot, acquired: Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances: Bilateral 50 Unilateral 30 Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities: Bilateral 30 Unilateral 20 Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral 10 Mild: symptoms relieved by built-up shoe or arch support 0 §4.115b (7508) Ratings of the genitourinary system-diagnoses 7508 Nephrolithiasis: Rate as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1. diet therapy 2. drug therapy 3. invasive or non-invasive procedures more than two times/year 30 VA, in determining all claims for benefits that have been reasonably raised by the filings and evidence, has applied the benefit-of-the-doubt and liberally and sympathetically reviewed all submissions in writing from the Veteran as well as all evidence of record.

Exhibit Page 70


Page 22 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty DECISION: 1. Evaluation of nephrolithiasis which is currently 10 percent disabling, is continued. 2. Evaluation of 10 percent for each foot for bilateral plantar fasciitis with pes planus and

arthritis is continued. 3. Earlier effective date of October 1, 1997 for the increased evaluation for service connected

bilateral plantar fasciitis is denied. REASONS AND BASES: 1. Evaluation of nephrolithiasis currently evaluated as 10 percent disabling. Rating decision dated August 26, 2015 continued the 10% evaluation for service connected nephrolithiasis, effective October 1, 1997, and stated a clear and unmistakable error was not found. A clear and unmistakable error (CUE) is an error that is undebatable, so that reasonable minds could not differ. A determination of CUE must be based on the record and the law that existed at the time of the prior decision. Such error must have been prejudicial to the claimant. Once a determination is made that there was a CUE in a prior decision that would change the outcome of that decision that decision must be corrected so as if the former error had not been made. A review of the evidence of record revealed rating decision dated August 25, 2000 increased the evaluation of nephrolithiasis of from 0 to 10%. The evaluation was based on the results of the VA outpatient treatment records and VA examination dated June 6, 2000. The medical evidence from the VAMC dated October 1999 showed a stone in the left ureter and 2-3 stones in the right kidney. Last seen in the emergency room in October 1999 where a stone was passed spontaneously. The VA exam noted your report of passing another stone in May 2000. A review of all evidence of record failed to show treatment on that day. He stated you did not seek medical treatment. Current stone formation was not shown. Although VA records do note at least two documented instances of recurrent stones, these records do not indicate you were prescribed long term diet or drug therapy or that you underwent procedures more than two times per year. As such a 10% evaluation was assigned based on an occasional attack and no recurrent stone formation, effective the day after discharge as you filed your claim for increased evaluation within one year of your release from military service, October 1, 1997. A higher evaluation of 20 percent is not warranted for nephrolithiasis unless the evidence shows: • Frequent attacks of colic, requiring catheter drainage. We received you’re your notice of disagreement with the evaluation assigned. You state a 30% evaluation is warranted effective October 1, 1997, due to recurrent stones and being placed on a dietary plan. You state stone formation occurred within 2 weeks of the date of the decision and you have been on a diet plan for the last 15 years. We also received the Progress Note dated

Exhibit Page 71


Page 23 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty August 12, 2001 from Emergency Room VAMC Memphis, noting a diagnosis of kidney stones. Discharge instructions included pain medication and dietary instructions restrictions: low fat diet; eat protein, dark leafy vegetables; tea and chocolate in limited amounts; drink plenty of water. A higher evaluation of 30 percent is not warranted for nephrolithiasis unless the evidence shows: • Recurrent stone formation requiring one or more of the following: • Diet therapy; or, • Drug therapy; or, • Invasive or non-invasive procedures more than two times/year; or, • Renal dysfunction symptoms including: • Albumin constant or recurring with hyaline and granular casts or red blood cells; or, • Hypertension at least 10 percent disabling under diagnostic code 7101; or, • Transient or slight edema. At the time of the decision August 25, 2000 this evidence was not of record and the incident, emergency room treatment, had not occurred. The report is dated almost a year later. As such it would not have been documented and available to be considered as evidence at the time of the decision. As such a clear and unmistakable error was not made in the decision dated August 25, 2000 regarding the 10% evaluation. 2. Evaluation of 10 percent for each foot assigned to the service connected bilateral plantar fasciitis with pes planus and arthritis . Rating decision August 26, 2015 concluded a clear and unmistakable error had not been made in rating decision dated March 11, 2011 regarding the effective date of April 1, 2009 for the increased evaluation of 20% for service connected bilateral plantar fasciitis with pes planus and arthritis. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. In this case, the previous effective date for the disability evaluation is continued as no clear and unmistakable error is shown. The rating decision dated March 11, 2011, granted a 10 percent evaluation for each foot based on physical findings characteristic of a moderate foot injury as this disability did not meet the criteria for a higher evaluation for arthritis or for plantar fasciitis or pes planus. You do not have severe symptoms to support a 10% evaluation for pes planus; or objective findings of painful and limited motion of the midfoot where arthritis is found. The evaluation criteria for plantar fasciitis only allows for a single compensable evaluation.

Exhibit Page 72


Page 24 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty A higher evaluation of 20 percent is not warranted unless there is objective evidence of unilateral severe marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use, and characteristic callosities. We received your notice of disagreement with the 10% evaluation. You state this disability is warranted a 20% evaluation as we failed to fully and sympathetically develop this claim and overlooked material facts and records. This evidence is in your service treatment records. The evidence provided in your service treatment records document and provided a link to military service. This evince also showed the severity of the disability at time of discharge. The evaluation is based on most current medical evidence of record at the time of the decision. When service connection was initially granted the medical evidence did not support a separate evaluation for each foot. The evidence supporting the higher evaluation was not of record until many years after your discharge and when you filed your claim for an increased evaluation in 2009. Additional evidence supporting a higher separate evaluation was not submitted with the appeal. A review of all evidence of record failed to support a higher evaluation. As such the combined 20% evaluation (10% assigned for each foot) is continued. 3. Earlier effective date of October 1, 1997 for the increased evaluation for service connected bilateral plantar fasciitis. The rating decision dated March 11, 2011, granted a 10 percent evaluation for each foot based on physical findings characteristic of a moderate foot injury effective April 1, 2009, the date VA received your claim for an increased evaluation. VA regulations stipulate claims for increased evaluations, if granted, is effective date of receipt of claim or date entitlement arose, whichever is later. The medical evidence does not clearly present findings characteristic of a moderate foot injury for each foot prior to April 1, 2009, there is no clear and unmistakable error in the effective date assigned for the 10 percent evaluation for each foot. As such rating decision dated August 26, 2015 concluded entitlement to an earlier effective date for the evaluation of 10 percent for each foot for bilateral plantar fasciitis with pes planus and arthritis (formerly evaluated as bilateral foot condition, partial loss of arches) is denied. We received your notice of disagreement with the effective date for the separate evaluation of 10% for each foot. The C&P exam dated May 2015, completed 12 year late, confirmed what was in the service treatment records. Pes planus and arthritis should have the effective date of October 1, 1997. We failed to fully and sympathetically develop this claim and overlooked material facts and records. Additional evidence supporting your claim for an earlier effected date was not submitted with the appeal. A review of the claim file did not reveal a claim for an increased evaluation within one year of the date of the initial rating. A notice of disagreement was received on January 6, 2010 regarding this evaluation. A decision dated March 11, 2011 granted a separate evaluation of 10% for each foot

Exhibit Page 73


Page 25 02/07/2017

NAME OF VETERAN


SOCIAL SECURITY NR

POA

S A Kendall, Atty effective the date we received your claim for an increased evaluation in 2009. A claim or an timely appeal is not of record supporting an earlier effective date. As such an earlier effective date of October 1, 1997 remains denied. PREPARED BY _______________________________________________________ Have electronically signed decision, T. K, DRO

Exhibit Page 74

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Exhibit Page 78

DEPARTMENT OF VETERANS AFFAIRS--

Michael Jennings

VA File Number

Represented By:SEAN A KENDALL

Rating Decision06/12/2017

INTRODUCTION

The records reflect that you are a veteran of the Gulf War Era, Peacetime and Vietnam Era. Youserved in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 toSeptember 30, 1997. The Board of Veterans Appeals remanded the case to our office on June 25,2014. Based on a review of the evidence listed below, we have made the following decision(s)on your claim.

DECISION

1. Service connection for unspecified adjustment disorder, claimed as acquired psychiatricdisorder to include PTSD and anxiety is granted with an evaluation of 30 percent effectiveMarch 30, 2009.

2. Evaluation of service connected bilateral, pes planus with plantar fasciitis and arthritis(previously evaluated 10% separately under diagnostic code 5299-5284) is increased to 30percent effective May 16, 2015.

Exhibit Page 79

Michael Jennings

2 of 4

EVIDENCE

• Board of Veteran Appeals Remand dated June 25, 2014• VA Form 21-526, Veterans Application for Compensation or Pension received on March 30,

2009• Rating Decision dated February 18, 2010• Memphis VAMC Treatment Records dated from April 28, 2009 through March 2, 2015• VA Initial Posttraumatic Stress Disorder DBQ and Medical Opinion received December 9,

2016• VA Foot Conditions, including Pes Planus DBQ dated May 16, 2015


1. Service connection for unspecified adjustment disorder, claimed as acquired psychiatricdisorder to include PTSD and anxiety.

Service connection for unspecified adjustment disorder, claimed as acquired psychiatric disorderto include PTSD and anxiety has been established as directly related to military service. TheBoard of Veterans Appeals remanded this appeal issue for a VA examination and medicalopinion after the Board deemed you submitted new and material evidence for review in regardsto service connection for this disability after November 1998.

The VA examiner reviewed all evidence of record as so mandated by the Board in conjunctionwith this exam. The examiner diagnosed an unspecified adjustment disorder as you did not meetthe VA criteria set for PTSD. He opined it is at least as likely as not the same condition calledsituational anxiety noted in your service treatment records in July 1984 and also as you werecounseled in August 1984. Post service in 2009 you sought psychological care at the VA andwas assessed with an adjustment disorder with anxiety.

An evaluation of 30 percent is assigned from March 30, 2009, the date a claim was receivedsupported with new and material evidence.

We have assigned a 30 percent evaluation for your chronic adjustment disorder based on: • Anxiety • Suspiciousness • A mental condition has been formally diagnosed, but symptoms are not severe enough eitherto interfere with occupational and social functioning or to require continuous medication

The overall evidentiary record shows that the severity of your disability most closelyapproximates the criteria for a 30 percent disability evaluation.

Exhibit Page 80

Michael Jennings

3 of 4

A higher evaluation of 50 percent is not warranted unless there is occupational and socialimpairment with reduced reliability and productivity due to such symptoms as: • Flattened affect; circumstantial, circumlocutory, or stereotyped speech; • Panic attacks more than once a week; • Difficulty in understanding complex commands; • Impairment of short- and long-term memory (e.g., retention of only highly learned material,forgetting to complete tasks); • Impaired judgment; impaired abstract thinking; • Disturbances of motivation and mood; • Difficulty in establishing and maintaining effective work and social relationships.

THIS DECISION IS CONSIDERED A FULL GRANT OF THIS APPEAL ISSUE.

2. Evaluation of service connected bilateral, pes planus with plantar fasciitis and arthritis(previously evaluated at 10% separately under diagnostic code 5299-5284).

Evaluation of service connected bilateral, pes planus with plantar fasciitis and arthritis(previously evaluated 10% separately under diagnostic code 5299-5284) is increased to 30%disabling. The Board of Veterans Appeals remanded this issue for a VA examination to reviewthe current severity of this disability.

During the exam you reported bilateral sharp pain. Flare ups with functional impairment wasnot reported. The examiner also noted pain on use. Extreme tenderness of plantar surfacebilaterally was noted with no improvement shown with orthopedic shoes or appliances. Therewas no evidence of pain accentuated on use or manipulation; swelling; or calluses. There was noevidence of decreased longitudinal arch height or marked deformity. Weight bearing line doesnot fall over or medial to great toe. There was no inward bowing of achilles tendon or markedinward displacement and severe spasms of the achilles tendon.

Though pain was noted on use there is no functional loss. You do not use an assistive device forlocomotion. Imaging reports do not show arthritis. A diagnosis of bilateral pes planus and plantarfasciitis was confirmed with no other disability noted. VAMC records do not show continuouscomplaints or treatment for this disability.

An evaluation of 30 percent is assigned due to the extreme tenderness with no relief fromorthopedic shoes or appliances. The 50% evaluation was considered but not assigned as all othersymptoms noted under the 50% evaluation was not shown: marked pronation; marked inwarddisplacement ; severe spasms on manipulation.

Exhibit Page 81

Michael Jennings

4 of 4

A higher evaluation of 50 percent is not warranted unless flatfeet are not improved by orthopedicshoes or appliances and there is marked pronation, extreme tenderness of plantar surfaces of thefeet, marked inward displacement, and severe spasm of the tendo achillis on manipulation.

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief containsthe regulations of the Department of Veterans Affairs which govern entitlement to all veteranbenefits. For additional information regarding applicable laws and regulations, please consultyour local library, or visit us at our web site, www.va.gov.

Exhibit Page 82

Rating Decision Department of Veterans Affairs-

Page 1 of 406/12/2017

NAME OF VETERAN

Michael JenningsVA FILE NUMBER POA

SEAN A KENDALLCOPY TO

ACTIVE DUTY


08/30/1973 11/29/1976 Army Honorable

11/05/1979 09/30/1997 Army Honorable

LEGACY CODES

ADD'LSVC CODE

COMBATCODE

SPECIALPROV CDE

FUTURE EXAMDATE

1 4 None

JURISDICTION: BVA Remand Dated 06/25/2014

ASSOCIATED CLAIM(s): 171; Remand; 06/25/2014

SUBJECT TO COMPENSATION (1.SC)

9440 UNSPECIFIED ADJUSTMENT DISORDER, CLAIMED AS ACQUIREDPSYCHIATRIC DISORDER TO INCLUDE PTSD AND ANXIETYService Connected, Peacetime, IncurredStatic Disability30% from 03/30/2009Original Date of Denial: 02/18/2010

5276 BILATERAL, PES PLANUS WITH PLANTAR FACIITIS AND ARTHRITIS(PREVIOUSLY EVALUATED SEPARATELY UNDER DIAGNOSTIC CODE5299-5284)Service Connected, Peacetime, IncurredStatic Disability30% from 05/16/2015

5010-5010 ARTHRITIS, LEFT KNEEService Connected, Peacetime, IncurredStatic Disability10% from 10/01/1997

5284-5276 BILATERAL PLANTAR FASCIITIS WITH PES PLANUS AND ARTHRITIS(FORMERLY EVALUATED AS BILATERAL FOOT CONDITION, PARTIALLOSS OF ARCHES)Service Connected, Peacetime, IncurredStatic Disability10% from 10/01/1997 to 04/01/2009

Exhibit Page 83


Page 2 of 406/12/2017

NAME OF VETERAN

Michael JenningsVA FILE NUMBER SOCIAL SECURITY NR POA


7508 NEPHROLITHIASIS (ALSO CLAIMED AS KIDNEY STONES,HYDRONEPHROSIS, AND HYDROURETER)Service Connected, Peacetime, IncurredStatic Disability10% from 10/01/1997

7804 SCARS (2), BILATERAL BREASTS, STATUS POST BILATERALSUBCUTANEOUS MASTECTOMYService Connected, Peacetime, IncurredStatic Disability0% from 10/01/1997 (7805)10% from 10/23/2008

6012 BILATERAL GLAUCOMAService Connected, Peacetime, IncurredStatic Disability10% from 03/30/2009

5299-5284 PES PLANUS OF THE RIGHT FOOT WITH PLANTAR FASCIITIS ANDARTHRITIS (PREVIOUSLY EVALUATED TOGETHER WITH LEFT FOOTDISABILITIES UNDER DIAGNOSTIC CODE 5276)Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015

5299-5284 PES PLANUS OF LEFT FOOT WITH PLANTAR FASCIITIS ANDARTHRITIS (PREVIOUSLY EVALUATED TOGETHER WITH RIGHT FOOTDISABILITIES UNDER DIAGNOSTIC CODE 5276)Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015

6699-6600 CALCIFIED GRANULOMA OF THE LUNGS (ALSO CLAIMED AS LUNGDISORDER, LOW LUNG VOLUME, AND ASBESTOSIS) (PREVIOUSLYEVALUATED UNDER DIAGNOSTIC CODE 6899-6846) [Asbestos]Service Connected, Gulf War, IncurredStatic Disability0% from 10/01/199710% from 01/07/2010

7805 STATUS POST ARTHROSCOPY, SCARS (2), LEFT KNEEService Connected, Peacetime, IncurredStatic Disability0% from 10/01/1997


30% from 10/01/1997 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)40% from 10/23/2008 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)

Exhibit Page 84


Page 3 of 406/12/2017

NAME OF VETERAN



60% from 03/30/2009 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)60% from 04/01/2009 (Bilateral factor of 2.7 Percent for diagnostic codes 5010, 5284, 5284)70% from 01/07/2010 (Bilateral factor of 2.7 Percent for diagnostic codes 5010, 5284, 5284)70% from 05/16/2015 (Bilateral factor of 3.7 Percent for diagnostic codes 5276, 5010)

NOT SERVICE CONNECTED/NOT SUBJECT TO COMPENSATION (8.NSC Peacetime, Vietnam Era,Gulf War)

6027 CATARACTSNot Service Connected, Not Incurred/Caused by ServiceOriginal Date of Denial: 02/18/2010

6099-6009 EYE CONDITION, OCULAR HYPERTENSION, MYOPIANot Service Connected, Not Incurred/Caused by Service

6399-6313 LEAD POISONINGNot Service Connected, No DiagnosisOriginal Date of Denial: 12/07/2011

6514 SINUSITISNot Service Connected, Not Incurred/Caused by ServiceOriginal Date of Denial: 12/07/2011

6846 SARCOIDOSIS AND SECONDARY CONDITIONSNot Service Connected, No DiagnosisOriginal Date of Denial: 05/08/2013

6847 SLEEP APNEANot Service Connected, No DiagnosisOriginal Date of Denial: 12/07/2011

7101 HIGH BLOOD PRESSURENot Service Connected, No DiagnosisOriginal Date of Denial: 12/07/2011

7346 GASTROESOPHAGEAL REFLUX DISEASENot Service Connected, Not Incurred/Caused by ServiceOriginal Date of Denial: 11/27/2009

7399-7323 DIVERTICULA DISEASENot Service Connected, No DiagnosisOriginal Date of Denial: 12/07/2011

Exhibit Page 85


Page 4 of 406/12/2017

NAME OF VETERAN



7913 DIABETES MELLITUS TYPE II ASSOCIATED WITH CALCIFIEDGRANULOMA OF THE LUNGS (ALSO CLAIMED AS LUNG DISORDER,LOW LUNG VOLUME, AND ASBESTOSIS) (PREVIOUSLY EVALUATEDUNDER DIAGNOSTIC CODE 6899-6846)Not Service Connected, Not Incurred/Caused by ServiceStatic DisabilityOriginal Date of Denial: 07/28/2010

9432 ADDICTION DISORDERWillful Misconduct, Substance Abuse

9440 ANXIETY DISORDERNot Service Connected, Not Incurred/Caused by Service

9999-9913 DENTAL TRAUMANot Service Connected, Not Incurred/Caused by ServiceOriginal Date of Denial: 11/27/2009

DENTAL DECISIONS


Appeal issue service connection for an acquired psychiatric disorder, to include PTSD and anxiety, diagnosed as anunspecified adjustment disorder is a full grant.

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Exhibit Page 86

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Exhibit Page 88


, 2018MICHAEL JENNINGSPO BOX 54192MILLINGTON TN 38054

In reply, refer to:320/215/pmFile Number: Michael Jennings

Dear Michael Jennings:

You have filed a Notice of Disagreement with our action. This is the first step in appealing to theBoard of Veterans’ Appeals (BVA). This letter and enclosures contain very importantinformation concerning your appeal.

Statement of the CaseWe have enclosed a Statement of the Case, a summary of the law and evidence concerning yourclaim. This summary will help you to make the best argument to the BVA on why you think ourdecision should be changed.

What You Need To DoTo complete your appeal, you must file a formal appeal. We have enclosed VA Form 9, Appealto the Board of Veterans’ Appeals, which you may use to complete your appeal. We will gladlyexplain the form if you have questions. Your appeal should address:

● the benefit you want● the facts in the Statement of the Case with which you disagree; and● the errors that you believe we made in applying the law.

When You Need To Do ItYou must file your appeal with this office within 60 days from the date of this letter or within theremainder, if any, of the one-year period from the date of the letter notifying you of the actionthat you have appealed. If we do not hear from you within this period, we will close yourcase. If you need more time to file your appeal, you should request more time before the timelimit for filing your appeal expires. See item 5 of the instructions in VA Form 9, Appeal to Boardof Veterans’ Appeals.

Hearings

Exhibit Page 89

Exhibit Page 92

MICHAEL JENNINGS

PO BOX 54192

MILLINGTON, TN 38054

Exhibit Page 125

Date: December 12, 2019 SS

MICHAEL JENNINGS

PO BOX 54192

MILLINGTON, TN 38054

Dear Appellant:

The Board of Veterans’ Appeals (Board) has made a decision in your appeal,

and a copy is enclosed.

If your decision

contains a What happens next

Grant The Department of Veterans Affairs (VA) will be contacting

you regarding the next steps, which may include issuing

payment. Please refer to VA Form 4597, which is attached

to this decision, for additional options.

Remand Additional development is needed. VA will be contacting

you regarding the next steps.

Denial or

Dismissal

Please refer to VA Form 4597, which is attached to this

decision, for your options.

If you have any questions, please contact your representative, if you have

one, or check the status of your appeal at http://www.vets.gov.

Sincerely yours,

K. Osborne

Deputy Vice Chairman

Enclosures (1)

CC: SEAN A KENDALL, Attorney

Exhibit Page 126

DATE: December 12, 2019

ORDER

Entitlement to an effective date of October 1, 1997, but no earlier, for a grant of

service connection for bilateral glaucoma, is granted.

REMANDED

Entitlement to service connection for gastroesophageal reflux disease (GERD), is

remanded.

FINDING OF FACT

1. There is an approximate balance of positive and negative evidence as to whether

the Veteran filed a proper and timely notice of disagreement (NOD) with a

November 1998 rating decision denying service connection for bilateral glaucoma.

2. The Veteran’s first claim seeking service connection for bilateral glaucoma was

received in October 1997 within one year from separation from service.

Exhibit Page 127

CONCLUSION OF LAW

The criteria for an effective date of October 1, 1997, for the grant of service

connection for bilateral glaucoma, have been met. 38 U.S.C. § 5110; 38 C.F.R.

§ 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in active duty service with the Army from August 1973 to

November 1976 and from November 1979 to September 1997.

This matter is on appeal from a December 2009 rating decision. The Veteran was

afforded an August 2013 hearing before the undersigned Judge. A transcript of the

hearing has been associated with the claims record.

In June 2014 the Board denied the Veteran entitlement to an earlier effective date

for the grant of service connection for bilateral glaucoma and remanded the issue

of service connection for GERD for additional development. The Veteran appealed

the Board decision to the Court of Appeals for Veterans Claims (CAVC or the

Court). The Court, in May 2015, partially vacated the Board’s determinations on

the issue of bilateral glaucoma and remanded the claim to VA for readjudication.

In May 2018 the Board denied the Veteran entitlement to an earlier effective date

for the grant of service connection for bilateral glaucoma and service connection

for GERD. The Veteran appealed the Board decision to the Court. The Court, in

July 2019, partially vacated the Board’s determinations on the issues above and

remanded the claim to VA for readjudication in accordance with the Joint Motion

Partial Remand (JMPR).

Effective Date

In general, except as otherwise provided, the effective date of an evaluation and

award of pension, compensation or dependency and indemnity compensation based

on an original claim, a claim reopened after final disallowance, or a claim for

Exhibit Page 128

increase will be the date of receipt of the claim or the date entitlement arose,

whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Generally, if a claim is received within one year after separation from service, the

effective date shall be “day following separation from active service.” 38 C.F.R.

§ 3.400 (b)(2). Otherwise, the effective date shall be date of claim or date

entitlement arose, whichever is later. Id. (emphasis added).

A claim is a formal or informal communication in writing requesting a

determination of entitlement, or evidencing a belief in entitlement, to a benefit.

38 C.F.R. § 3.1 (p) (2017). An informal claim is any communication or action

indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a) (2017).

VA must look to all communications from a claimant that may be interpreted as

applications or claims, formal and informal, for benefits, and is required to identify

and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196

(1992).

The Veteran seeks an earlier effective date of October 1, 1997, the day after the

Veteran’s separation from service. The Veteran contends that he has submitted

valid NODs to timely appeal a November 1998 rating decision denying service

connection for the Veteran’s bilateral glaucoma. The Veteran is currently service

connected for bilateral glaucoma with an effective date of March 30, 2009.

In August 1997, one month from the Veteran’s separation from service, the Veteran

filed a claim for several disabilities, including one for an “eye condition.” The

Veteran’s claim for several disabilities were all listed on a separate sheet submitted

with the Veteran’s claim. An April 1998 rating decision denied service connection

for the Veteran’s eye condition.

The Veteran was afforded an August 1998 examination. The examiner diagnosed

myopia and ocular hypertension and noted that “further studies would be indicated

and followup exam to determine a definite diagnosis of glaucoma.” The August

1998 examination did not give an opinion as to the etiology of the Veteran’s

diagnoses in relation to his service. In an October 1998 report of contact, it was

Exhibit Page 129

noted that the Veteran had missed a scheduled September 1998 examination and

requested the examination be rescheduled.

In a November 1998 rating decision, the regional office (RO) denied service

connection for an eye condition. The rating decision noted the Veteran was

diagnosed for myopia and ocular hypertension and first stated that myopia was not

a compensable disability. The rating decision found after review of the record that

no diagnosis of ocular hypertension was noted in the Veteran’s STRs and therefore

found there was no valid disability found to grant service connection.

In March 30, 2009, the Veteran submitted a statement to reopen his claim for

service connection for bilateral glaucoma/eye condition. In multiple submitted

statements, the Veteran asserted that the eye examinations in his service treatment

records (STRs) found or confirmed a diagnosis of glaucoma and that VA failed to

review medical records in making their decision.

The Veteran has also asserted clear and unmistakable error (CUE) with the

November 1998 rating decision, contending VA did not review medical

documentation or military medical records in making their decision.

A December 2009 rating decision did not find CUE with the November 1998 rating

decision. The December 2009 rating decision did not find the record showed any

evidence of clinical diagnosis during active service or a confirmed diagnosis of

glaucoma within one year from separation of service.

The Veteran was afforded a January 2010 examination. The examiner opined “the

Veteran did develop glaucoma somewhere between 1987 and 1992 as evidence of

exam findings.” A February 2010 rating decision granted service connection for

bilateral glaucoma effective March 30, 2009, the date of the Veteran’s claim to

reopen his claim for an eye condition.

The Veteran has submitted multiple statements throughout the appeals period

asserting that his glaucoma manifested during his active duty service. The Veteran

has stated that glaucoma was diagnosed and confirmed in the Veteran’s STRs.

Veteran has raised CUE was committed by VA not considering medical records or

the Veteran’s STRs. A June 2010 rating decision denied an earlier effective date for

Exhibit Page 130

service connection of bilateral glaucoma, finding the Veteran did not appeal the

November 1998 rating decision within one year.

At the Veteran’s August 2013 hearing, the Veteran testified that he was diagnosed

with glaucoma and ocular hypertension in service. The Veteran stated that 1992

results showing his eye “outside normal limits” and nerve damage resulted in him

developing glaucoma in 1992.

In a June 2014 Board decision, the decision denied the Veteran’s claim for an

earlier effective date for a grant of service connection for bilateral glaucoma. The

Board found:

“Simply put, there is no evidence that the Veteran filed a NOD within the

year following the November 1998 rating decision, nor may any document

dated between November 1998 and March 2009 be construed as a request to

reopen the service connection or a bilateral eye disability claim.”

In a May 2015 CAVC decision, the Court found the June 2014 Board decision did

not provide an adequate statement of reasons or bases to support its decision,

specifically finding the Board erred by not addressing favorable evidence

suggesting the Veteran may had filed a NOD to the November 1998 rating

decision.

The Court noted that following the November 1998 rating decision, the Veteran

filed a January 1999 statement and other evidence to include a claim for acid

reflux. In the submitted documents, the Court notes that a copy of the Veteran’s

October 1997 claim for service-connected benefits had been submitted with a

marking of “D” next to his claimed disabilities including “eye condition.”

The Court also notes that in an October 1999 NOD to a September 1999 rating

decision for other issues the Veteran stated that he wished to “file this claim well

with the time one-year time frame to claim all injury and disease connected with

military service.” The Court found the June 2014 Board decision did not discuss

whether the noted evidence constituted a claim to reopen the Veteran’s denied

service connection claim for bilateral glaucoma under a liberal reading.

Exhibit Page 131

The Court also found that while the Board decision found that the Veteran did not

appeal the November 1998, in a submitted November 2010 statement from the

Veteran, the Veteran asserted that he filed multiple NODs to include the January

1999 submission. The Court found the Board did not account for these assertions

and so vacated and remanded this issue back to the Board for readjudication.

In a May 2015 VA examination, the optometry resident examiner remarked the

Veteran was diagnosed with glaucoma in 1992.

In a May 2018 Board decision, the Board denied an earlier effective date for a

grant of service connection for bilateral glaucoma and also did not find CUE with

the November 1998 decision.

The Board found that although the Veteran in March 2011 asserted submitting five

NODs to the RO’s denial of service connection for his claimed eye disorder, the

record “simply does not reflect the same. In that regard, the record shows that no

further correspondence concerning the claimed eye disorder was not received from

the Veteran until March 2009.”

The Board found that no correspondence expressing any disagreement with the

April and November 1998 rating decision within one year of the decisions. As

such, the Board found the March 2009 submission was correctly construed by the

RO as a petition to reopen the Veteran’s claim for service connection for an eye

condition and therefore the March 30, 2009 effective date was the correct date.

In a February 2019 VA examination, the examiner noted the Veteran’s diagnosis of

bilateral glaucoma, but gave an unknown exact date of diagnosis, only marking

“1990s.”

In a July 2019 CAVC decision, the Court vacated and remanded this issue, finding

the May 2018 Board decision did not substantially comply with the May 2015

JMPR. The Court found the May 2018 Board decision did not address any of the

evidence as pointed out by the May 2015 JMPR to be considered in addressing

whether the Veteran submitted any NODs in response to the November 1998 rating

decision.

Exhibit Page 132

The Board notes that that VA amended its adjudication regulations on March 24,

2015 to require that all NODs be submitted on a specific form. See 79 Fed. Reg.

57660 (Sept. 25, 2014). The amendments, however, are only effective for claims

and appeals filed on or after March 24, 2015. As the appeal in this case was filed

prior to that date, the amendments are not applicable in this instance and the

regulations in effect prior to March 24, 2015 will be applicable here. Under the old

regulations, special wording is not required for an NOD and all that is required is

that an NOD be in terms which can be reasonably construed as a disagreement

with a determination and a desire for appellate review. 38 C.F.R. § 20.201 (in effect

prior to March 24, 2015).

A valid NOD may consist of a written communication from a claimant expressing

dissatisfaction or disagreement with an identified adjudicative determination by the

RO and a desire to contest the result. 38 C.F.R. § 20.201 (b). See also Palmer v.

Nicholson, 21 Vet. App. 434, 437 (2007) (stating that to determine whether a

written communication constitutes an NOD, the Court looks at both the actual

wording of the communication and the context in which it was written); see also

Jarvis v. West, 12 Vet. App. 559, 561-62 (1999) (holding that VA must liberally

construe all filings by a claimant, including any documents that may constitute an

NOD).

The Veteran has submitted copies of the November 1998 rating decision with his

written notes and annotations. The Veteran has specifically written notes asserting

“failed to process NODs.” In a June 2010 statement the Veteran stated that 5 NODs

were filed, and some were omitted by the rater. In a March 2011 statement, the

Veteran stated that he filed 5 NODs “two by phone calls after receiving the

November 1998 rating decision.

The Veteran states that December 1998 NOD was raised over the phone. The

Veteran notes that his January 1999 submission was considered as a new claim,

however he asserts this was an NOD and incorrectly assumed as a new claim

because it was submitted within the time frame for submitting appeals. In August

2011 the Veteran stated that he filed 5 NODs in December 1998, January 1999,

October 18, 1999, October 26, 1999 and 2000.

Exhibit Page 133

Review of the claims record does not show a December 1998 or 2000 NOD

submission. As noted by the Court, in January 1999, the Veteran submitted a

statement claiming service connection for acid reflux. The Veteran stated that

during a VA general examination he claimed this condition and “was not told nor

indicated the claim would be dropped from his claim.” The Veteran submitted

copies of his October 1997 initial claim for benefits including one copy where he

added two additional disabilities and marked “D” to all claimed issues including

for “eye condition.” In a copy of the claim submitted in October 2015, the Veteran

added an additional note which stated, “written communication with the letter (D)

disagreement with entire rating dated 7/Nov/98.”

On October 18, 1999, the Veteran submitted a statement disagreeing with the

evaluation of nephrolithiasis. In a handwritten notation dated May 2000, it was

written as “accept as NOD with 11/7/1998.”

On October 28, 1999, the Veteran submitted a statement titled “appealing finding

for gastroesophageal reflux disease.” As noted by the Court, the statement begins

by asserting “I file this claim well with the time one-year time frame to claim all

injury and disease connected with military service.”

Resolving reasonable doubt in favor of the Veteran and applying liberal

interpretation, the Board liberally construes the Veteran’s December 1998 and

October 1999 submitted statements as a submitted NOD to the November 1998

rating decision. See 38 C.F.R. § 20.201 (as in effect prior to March 24, 2015);

Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will

continue to be, liberal in determining what constitutes a Notice of Disagreement.”).

As these submissions were received by VA within one year of the November 1998

rating decision, they are considered timely. 38 C.F.R. § 20.302 (a).

As such, the Board finds the November 1998 rating decision never became final, as

the Veteran timely filed a NOD within one year of the rating decision. Since a SOC

was never issued in response to the Veteran’s December 1998 or October 1999

submission, the November 1998 claim for service connection for bilateral

glaucoma remains pending. Norris v. West, 12 Vet. App. 413, 422 (1999); Jones v.

Shinseki, 23 Vet. App. 122, 125 (2009); Myers v. Principi, 16 Vet. App. 228, 236

(2002) (since VA failed to issue SOC after valid NOD was filed, the original claim

Exhibit Page 134

was still pending and is relevant to determining the effective date of a service

connection award).

The Board notes that the Veteran has consistently asserted CUE with the November

1998 rating decision throughout the appeals period. However, the Veteran does not

have to meet that high evidentiary standard unless the November 1998 rating

decision became final. See Young v. Wilkie, 31 Vet. App. 51, 56 (2019). Conversely,

if the November 1998 rating decision never became final, the Board need not

address whether a CUE existed in that decision and it can adjudicate the Veteran’s

claims for earlier effective dates for the grant of service connection on the merits.

After review of the record and resolving reasonable doubt in favor of the Veteran,

the Board finds the Veteran’s bilateral glaucoma manifested during his active duty

service. The January 2010 examiner opined the Veteran developed glaucoma

between 1987 and 1992 during the dates of his active duty service. The May 2015

VA examiner remarked the Veteran was diagnosed with glaucoma in 1992. The

February 2019 VA examiner did not provide a specific date of diagnosis for

glaucoma but marked it as in the “1990s.”

The Veteran’s STRs show eye examination of “glaucoma suspect” and abnormal

ocular pressure findings. The Veteran has consistently stated and reported

throughout the appeals period of symptoms attributed to the Veteran’s bilateral

glaucoma prior to the date the Veteran filed his claim for service connection. The

Veteran’s initial claim for service connection for an eye condition was dated

August 1997 and received October 1997, shortly before and after his separation

from service.

In applying the regulation to the facts of this case, and as any reasonable doubt

must be resolved in the Veteran’s favor, the Board finds that the date of initial

claim is the day following the Veteran’s separation from service and therefore,

October 1, 1997 is the appropriate effective date for the grant of service connection

for the Veteran’s bilateral glaucoma.

Exhibit Page 135

REASONS FOR REMAND

The Board finds that remand for additional development and clarification is

warranted prior to final adjudication of the Veteran’s appeal.

The Veteran asserted service connection for GERD as secondary to service-

connected disabilities. The Veteran has made several assertions and statements

regarding the cause of his GERD to include from his diet and foods he ate during

service; anxiety, harassment, nerves, lack of sleep and posttraumatic stress disorder

(PTSD); in-service asbestos exposure; medication for treating cataracts; and sleep

apnea. The Veteran has consistently stated that he has had GERD-related

symptoms since separation from service.

The Veteran is currently service-connected for PTSD with major depressive

disorder, sleep apnea, interstitial lung disease due to asbestos exposure, and

bilateral open angle glaucoma.

A June 2014 Board decision remanded this issue for a VA examination to

determine the nature and etiology of the Veteran’s GERD. The Veteran was

afforded a May 2015 VA examination. The examiner found the Veteran’s GERD

was at least as likely as not incurred in or caused by the claimed in-service injury,

event or illness. The examiner opined:

“Veteran was found to have severe GERD in 1998 on an UGI series. It is at

least as likely as not that the GERD incurred within a year of separation and

based on its severity, at least as likely as not incurred in service.”

In a May 2018 Board decision, the Board denied service connection for GERD.

The Board found the Veteran’s STRs showed no subjective complaints of GERD or

GERD-related symptoms nor any objective findings or diagnoses related to GERD

during service. The Board noted the Veteran’s August 1997 retirement examination

found normal findings of the Veteran’s abdomen and viscera, and the Veteran

expressly denied having any previous or current history of any GERD-related

symptomatology.

Exhibit Page 136

The Board found that although the May 2015 VA examiner gave a positive opinion

to the etiology of the Veteran’s GERD, the Board found the VA examiner’s positive

etiology opinion was not supported by the record. The Board stated:

“[The May 2015 VA opinion] does not acknowledge that the Veteran’s

service treatment records make no reference to GERD or GERD-like

symptoms, or, that the Veteran expressly denied having such symptoms

during his in-service medical examination and retirement examinations. The

examiner makes no effort to reconcile the contradictory evidence with the

state opinion.”

The May 2018 Board decision was “not inclined to assign” any significant

probative weight to the May 2015 VA opinion and rationale in denying service

connection for GERD.

In the July 2019 CAVC decision, the Court found the May 2018 Board decision

failed to provide an adequate statement of reasons or bases for discounting the May

2015 VA medical opinion. The Court noted that there is no reasons-or-bases

requirement on medical examiners. Acevedo v. Shinseki, 25 Vet.App, 286, 293

(2012) (“there is no reasons or bases requirement imposed on examiners”). The

Court found the Board appears to have impermissibly imposed a reasons-or-bases

requirement on the VA examiner. The Court vacated and remanded this issue for

the Board to provide an adequate statement of reasons or bases in considering the

May 2015 VA opinion.

The Board initially wishes to make it clear that it is aware of the Court’s

instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that

a remand by the Court is not “merely for the purposes of rewriting the opinion so

that it will superficially comply with the ‘reasons or bases’ requirement of

38 U.S.C. § 7104 (d)(1). A remand is meant to entail a critical examination of the

justification for the decision.” The Board’s analysis has been undertaken with

Fletcher in mind.

The Board notes that at the time of the May 2015 VA opinion the Veteran was not

yet service connected for PTSD or sleep apnea. While the May 2015 opinion

provided a positive opinion, it is unclear how the examiner determined the

Exhibit Page 137

Veteran’s GERD was incurred during active duty service when compared to the

Veteran’s denial of GERD symptoms at his retirement examination for separation

and no record or reference to GERD or GERD-like symptoms in the Veteran’s

STRs.

The Board also notes that the Veteran’s PTSD and sleep apnea were service

connected after the May 2015 opinion; and although the Veteran has stated that his

service-connected disabilities caused his GERD, the May 2015 does not provide

any opinions regarding secondary service connection for the Veteran’s service-

connected disabilities.

As such, the Board finds that remand is still warranted to clarification and opinion

on secondary service connection

The matters are REMANDED for the following action:

1. Obtain outstanding relevant VA treatment records and

associate them with the claims file.

2. Return the claims file to the VA examiner who

conducted the May 2015 examination, if available, for

clarification and additional opinions. If that examiner is

not available, the claims file should be provided to

another physician to obtain the requested opinion.

The opinion provider should thoroughly review the

Veteran’s VA claims file, to include his STRs, as well as a

complete copy of this Remand. If a new examination is

deemed necessary in order to render the opinions

requested the Veteran should be scheduled for such

examination.

After review of the claims file, the examiner is asked to

respond to the following:

(a.) Address the Veteran’s STRs and Veteran’s

separation examination showing no record of

Exhibit Page 138

complaints, treatment or diagnoses for GERD or

GERD-like symptoms and evaluate whether it is

sufficient for reconsideration of opinion.

(b.) Provide an opinion on whether it is at least as

likely as not that the Veteran’s service-connected

disabilities caused or aggravated his GERD.

“Aggravation” is defined as any worsening beyond

the natural progression of the disability.

The examiner should address the Veteran’s

statements regarding the cause of his GERD due to

PTSD, sleep apnea, and asbestos exposure.

3. The examiner is also advised that the Veteran is

competent to report in-service events and treatment, and

his symptoms and history, and such reports and assertions

must be specifically acknowledged and considered in

formulating any opinions. If the examiner rejects the

Veteran’s reports, the examiner must provide a reason for

doing so.

The examiner should provide a complete rationale for

any opinion provided, and if the examiner is unable to

provide any opinion request, then the examiner should

state so and why.

4. After completion of the above and any additional

development deemed necessary, the issues on appeal

should be reviewed with consideration of all applicable

laws and regulations.

If any benefit sought remains denied, the Veteran should

be furnished a supplemental statement of the case and be

afforded the opportunity to respond. Thereafter, the case

Exhibit Page 139

should be returned to the Board for appellate review, if in

order.

MICHAEL LANE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J. Yang, Attorney-Advisor

The Board’s decision in this case is binding only with respect to the instant matter

decided. This decision is not precedential, and does not establish VA policies or

interpretations of general applicability. 38 C.F.R. § 20.1303.

Exhibit Page 140

DEPARTMENT OF VETERANS AFFAIRSVeterans Benefits Administration

Regional Office

Michael Jennings

VA File Number

Represented By:

SEAN A KENDALL Rating Decision

09/18/2019

INTRODUCTION

The records reflect that you are a veteran of the Gulf War Era, Peacetime and Vietnam Era. Youserved in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 toSeptember 30, 1997. We received a request to reopen a previous claim on April 12, 2019 andAugust 12, 2019. Based on a review of the evidence listed below, we have made the followingdecision(s) on your claim. Please note: We contacted the Memphis VA Medical Center on 05/23/2019 to obtain your VAMedical Center Records for all claimed contentions, however, the system shows that you had your first initial new patient appointment on 08/27/1998 therefore, we have determined thatrecords prior to 08/27/1998 do not exist.

DECISION

1. The claim for service connection for variable extrathoracic upper airway obstruction remainsdenied because the evidence submitted is not new and relevant. 2. Entitlement to an earlier effective date for service connection of sleep apnea with interstitial

Exhibit Page 141

lung disease is denied. 3. Entitlement to an earlier effective date, separate evaluations for plantar fasciitis, arthritis, andpes planus, and retro pay requested for 30 percent rating is denied.

EVIDENCE

● VAMC (Veterans Affairs Medical Center-Memphis) treatment records, from April 1, 2009through August 21, 2019

● Section (§) 5103 Notice Response, received August 12, 2019● VA Form 20-0995 Supplemental Claim Application, received, August 12, 2019● Copy of Statement of Case, dated February 7, 2017, received April 8, 2019 , May 11, 2019

and August 12, 2019● VA Form 21-4138, Statement in Support of Claim, received August 12, 2019● VA letter concerning your claim, dated August 5, 2019● VA letter concerning your claim, dated July 25, 2019● VA letter concerning your claim, dated July 19, 2019● CAVC Decision, received, July 1, 2019● VAMC (Veterans Affairs Medical Center-Memphis) treatment records, from August 27,

1998 through May 22, 2019● VA Form 21-4138, Statement in Support of Claim, received May 11, 2019● VA Form 20-0995 Supplemental Claim Application, received, May 11, 2019● Medical Treatment Record - Government Facility , foot examination, received May 11, 2019● VA Form 20-0995 Supplemental Claim Application, received, April 12, 2019● Medical Treatment Record - Government Facility, sleep study performed November 2, 2012

and received April 12, 2019● BVA Decision, dated June 25, 2014, received, April 12, 2019● VA Form 21-4138, Statement in Support of Claim, received April 8, 2019● VA letter concerning your claim, dated October 17, 2018● Rating Decision, dated March 25, 2019● DBQ Medical Opinion - OSA (Positive secondary opinion), dated, January 11, 2019● DBQ RESP Sleep Apnea, dated, January 11, 2019● Service Treatment Records, from August 30, 1973 through November 29, 1976 and from

November 5, 1979 through September 30, 1997


1. Service connection for variable extrathoracic upper airway obstruction. A claimant may request readjudication of a previously denied claim, if new and relevantevidence is presented or secured. VA will readjudicate the claim taking into consideration all ofthe evidence of record. New evidence means existing evidence not previously submitted toagency decisionmakers. The term “relevant evidence” means evidence that tends to prove ordisprove a matter in issue. (See generally 38 U.S.C. § 5108, as amended by Public Law 115-55)

Michael Jennings

2 of 6

Exhibit Page 142

In support of your claim, new and relevant evidence has not been received and your claimremains denied. Service connection may be granted for a disability which began in militaryservice or was caused by some event or experience in service. Service connection for variableextrathoracic upperairway obstruction is denied because the medical evidence of record fails toshow that this disability has been clinically diagnosed. (38 CFR 3.303). Please note: We grantedservice connection for interstitial lung disease with your sleep apnea. 38 CFR 4.96(a) notes specific respiratory disabilities that are not permitted to be evaluatedseparately, as they involve similar symptomatology or disability manifestations. Per theregulation, these two disabilities, sleep apnea under diagnostic code 6847 and interstitial lungdisease under diagnostic code 6833, cannot be separately evaluated. This regulation also notes that a single evaluation will be assigned under the diagnostic codewhich reflects the predominant disability picture, with elevation to the next higher evaluationwhere the severity of the overall disability warrants such elevation. In your case, the evidenceshows sleep apnea is the predominant disability. Laws and regulations applicable to this issue: 38 U.S.C. § 5108 Supplemental Claims. (as amended by Public Law 115-55) 38 U.S.C. § 101(35) (as amended by Public Law 115-55) 38 C.F.R. §3.2500 Review of decisions. 38 C.F.R. §3.2501 Supplemental claims. 2. Entitlement to an earlier effective date for service connection of sleep apnea withinterstitial lung disease. A claimant may request readjudication of a previously denied claim, if new and relevantevidence is presented or secured. VA will readjudicate the claim taking into consideration all ofthe evidence of record. New evidence means existing evidence not previously submitted toagency decisionmakers. The term “relevant evidence” means evidence that tends to prove ordisprove a matter in issue. (See generally 38 U.S.C. § 5108, as amended by Public Law 115-55) In support of your claim, new and relevant evidence has not been received and your claimremains denied. Entitlement to an earlier effective date for service connection for sleep apnea with interstitiallung disease has been denied. (38 CFR 3.400). Please note: You were diagnosed with obstructivesleep apnea November 2, 2012. When you filed a claim for service connection for sleep apnea itwas not linked to military service as it was not shown to first manifest while on active dutyservice. We granted service connection based on a secondary basis with a medical opinion datedJanuary 11, 2019, which linked your connection on a secondary basis as it was related to theservice-connected disability of post traumatic stress disorder with major depressive disorder. We have assigned a 50 percent evaluation for your sleep apnea based on: • Requires use of breathing assistance device such as continuous airway pressure (CPAP)

Michael Jennings

3 of 6

Exhibit Page 143

machine Additional symptom(s) include: • Persistent day-time hypersomnolence A higher evaluation of 100 percent is not warranted for sleep apnea syndromes unless theevidence shows: • Carbon dioxide retention; or, • Chronic respiratory failure; or, • Cor pulmonale; or, • Tracheostomy required. (38 CFR 4.124a) A higher evaluation of 100 percent is not warranted unless FVC is less than 50 percent predicted;or DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15ml/kg/min oxygen consumption with cardiorespiratory limitation; or cor pulmonale orpulmonary hypertension; or outpatient oxygen therapy is required. (38 CFR 4.96, 38 CFR 4.97) The service connected disability of interstitial lung disease, which is continued as 30 percent,hasbeen included in this evaluation. We have assigned a 30 percent evaluation for your interstitial lung disease (previously ratedascalcified granuloma of the lungs (also claimed as lung disorder, low lung volume, andasbestosis)(previously evaluated under diagnostic code 6899-6846)) based on: • Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method(DLCO(SB)) of 56 to 65 percent of predicted value (56%) Additional symptom(s) include: • Forced Vital Capacity (FVC): 93% (Not considered for compensable evaluation) When there is a disparity between the results of different Pulmonary Function Tests (PFTs), sothat the level of evaluation would differ depending on which test result is used, the test result thatthe examiner states most accurately reflects the level of disability shall be used. In your case, theexaminer has indicated that your DLCO(SB) most accurately reflects your level of disability.(38CFR 4.96) A higher evaluation of 60 percent is not warranted for asbestosis unless the evidence shows: • DLCO (SB) of 40- to 55-percent predicted; or, • FVC of 50- to 64-percent predicted; or, • Maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardio respiratorylimitation. (38 CFR 4.97) 38 CFR 4.96(a) notes specific respiratory disabilities that are not permitted to be evaluatedseparately, as they involve similar symptomatology or disability manifestations. Per theregulation, these two disabilities, sleep apnea under diagnostic code 6847 and interstitial lungdisease under diagnostic code 6833, cannot be separately evaluated. This regulation also notes that a single evaluation will be assigned under the diagnostic code

Michael Jennings

4 of 6

Exhibit Page 144

which reflects the predominant disability picture, with elevation to the next higher evaluationwhere the severity of the overall disability warrants such elevation. In your case, the evidenceshows sleep apnea is the predominant disability. Laws and regulations applicable to this issue: 38 U.S.C. § 5108 Supplemental Claims. (as amended by Public Law 115-55) 38 U.S.C. § 101(35) (as amended by Public Law 115-55) 38 C.F.R. §3.2500 Review of decisions. 38 C.F.R. §3.2501 Supplemental claims. 38 C.F.R. §4.97 Schedule of ratings—respiratory system. [DC6833,6847] 3. Entitlement to an earlier effective date and separate evaluations for plantar fasciitis,arthritis, and pes planus A claimant may request readjudication of a previously denied claim, if new and relevantevidence is presented or secured. VA will readjudicate the claim taking into consideration all ofthe evidence of record. New evidence means existing evidence not previously submitted toagency decisionmakers. The term “relevant evidence” means evidence that tends to prove ordisprove a matter in issue. (See generally 38 U.S.C. § 5108, as amended by Public Law 115-55) In support of your claim, we already granted an earlier effective date for your bilateral, pesplanus with plantar fasciitis and arthritis at 10% from October 1, 1997 through April 1, 2009.Rating decision August 26, 2015 concluded a clear and unmistakable error had not been made inrating decision dated March 11, 2011 regarding the effective date of April 1, 2009 for theincreased evaluation of 20 percent for service connected bilateral plantar fasciitis with pes planusand arthritis. The evaluation criteria for plantar fasciitis only allows for a single compensableevaluation. Therefore we rated your pes planus of left foot/right with plantar fasciitis and arthritisseparately from April 1, 2009 at 10 percent for each foot (which is 20 percent combined). We granted An evaluation of 30 percent effective May 16, 2015, date of exam, due to theextreme tenderness with no relief from orthopedic shoes or appliances. The 50% evaluation wasconsidered but not assigned as all other symptoms noted under the 50% evaluation was notshown: marked pronation; marked inward displacement ; severe spasms on manipulation. (38CFR 4.71a) The effective date of the retro pay was from May 16, 2015, A higher evaluation of 50 percent is not warranted unless flatfeet are not improved by orthopedicshoes or appliances and there is marked pronation, extreme tenderness of plantar surfaces of thefeet, marked inward displacement, and severe spasm of the tendo achillis on manipulation. (38CFR 4.71a) The evaluation of the same disability under various diagnoses is to be avoided. Disability frominjuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so thatspecial rules are included in the appropriate bodily system for their evaluation. Dyspnea,

Michael Jennings

5 of 6

Exhibit Page 145

tachycardia, nervousness, fatigability, etc., may result from many causes; some may be serviceconnected, others, not. Both the use of manifestations not resulting from service-connecteddisease or injury in establishing the service-connected evaluation, and the evaluation of the samemanifestation under different diagnoses are to be avoided. We cannot separately evaluate yourfoot conditions of 10 percent each for separate diagnoses based on similar symptomatology.Therefore we had to evaluate these conditions together. (38 CFR 4.14) In a Rating Decisiondated June 12, 2017, benefits were awarded for the following issue(s): Evaluation of serviceconnected bilateral, pes planus with plantar fasciitis and arthritis (previously evaluated 10percent separately under diagnostic code 5299-5284) is increased to 30 percent effective May 16,2015. Laws and regulations applicable to this issue: 38 U.S.C. § 5108 Supplemental Claims. (as amended by Public Law 115-55) 38 U.S.C. § 101(35) (as amended by Public Law 115-55) 38 C.F.R. §3.2500 Review of decisions. 38 C.F.R. §3.2501 Supplemental claims. 38 C.F.R. §4.71a Schedule of ratings—musculoskeletal system. [DC5276]

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains theregulations of the Department of Veterans Affairs which govern entitlement to all veteranbenefits. For additional information regarding applicable laws and regulations, please consultyour local library, or visit us at our website, www.va.gov.

Michael Jennings

6 of 6

Exhibit Page 146

ACTIVE DUTY


08/30/1973 11/29/1976 Army Honorable

11/05/1979 09/30/1997 Army Honorable

LEGACY CODES

ADD'L SVCCODE

COMBATCODE

SPECIALPROV CDE

FUTURE EXAMDATE

1 4 None

JURISDICTION: Reopened Claim Received 04/12/2019

ASSOCIATED CLAIM(s):041; Supplemental Claim Rating; 08/12/2019

040; Supplemental Claim Rating; 04/12/2019


9411 POST TRAUMATIC STRESS DISORDER WITH MAJOR DEPRESSIVE DISORDER,

RECURRENT, MODERATE (PREVIOUSLY RATED AS UNSPECIFIEDADJUSTMENT DISORDER UNDER DIAGNOSTIC CODE 9440)Service Connected, Peacetime, IncurredStatic Disability30% from 03/30/2009 (9440)70% from 08/06/2018Original Date of Denial: 02/18/2010

6833-6847 SLEEP APNEA WITH INTERSTITIAL LUNG DISEASE ASSOCIATED WITH POSTTRAUMATIC STRESS DISORDER WITH MAJOR DEPRESSIVE DISORDER,RECURRENT, MODERATE (PREVIOUSLY RATED AS UNSPECIFIEDADJUSTMENT DISORDER UNDER DIAGNOSTIC CODE 9440)Service Connected, Peacetime, SecondaryStatic Disability50% from 08/14/2018Original Date of Denial: 12/07/2011

5276 BILATERAL, PES PLANUS WITH PLANTAR FASCIITIS AND ARTHRITIS(PREVIOUSLY EVALUATED SEPARATELY UNDER DIAGNOSTIC CODE 5299-

Rating Decision Department of Veterans AffairsVeterans Benefits Administration

Page 1 of 609/18/2019

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 147

10% from 10/23/2008

6012 PRIMARY OPEN ANGLE GLAUCOMA, BILATERALService Connected, Peacetime, IncurredStatic Disability10% from 03/30/2009

5299-5284 PES PLANUS OF LEFT FOOT WITH PLANTAR FASCIITIS AND ARTHRITIS(PREVIOUSLY EVALUATED TOGETHER WITH RIGHT FOOT DISABILITIESUNDER DIAGNOSTIC CODE 5276)Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015

5299-5284 PES PLANUS OF THE RIGHT FOOT WITH PLANTAR FASCIITIS AND ARTHRITISPREVIOUSLY EVALUATED TOGETHER WITH LEFT FOOT DISABILITIESUNDER DIAGNOSTIC CODE 5276Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015



30% from 10/01/1997 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)40% from 10/23/2008 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)60% from 03/30/2009 (Bilateral factor of 1.9 Percent for diagnostic codes 5010, 5276)60% from 04/01/2009 (Bilateral factor of 2.7 Percent for diagnostic codes 5284, 5010, 5284)70% from 01/07/2010 (Bilateral factor of 2.7 Percent for diagnostic codes 5284, 5010, 5284)70% from 05/16/2015 (Bilateral factor of 3.7 Percent for diagnostic codes 5010, 5276)80% from 11/07/2017 (Bilateral factor of 3.7 Percent for diagnostic codes 5010, 5276)90% from 08/06/2018 (Bilateral factor of 3.7 Percent for diagnostic codes 5010, 5276)100% from 08/14/2018 (Bilateral factor of 3.7 Percent for diagnostic codes 5010, 5276)

NOT SERVICE CONNECTED/NOT SUBJECT TO COMPENSATION (8.NSCPeacetime, Vietnam Era,Gulf War)

6027 CATARACTS



Page 3 of 609/18/2019

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 149


ANCILLARY DECISIONS

Basic Eligibility under 38 USC Ch 35 from 08/14/2018

DENTAL DECISIONS


______________________________________eSign: certified by VSCVSHEL318, RVSR


Page 6 of 609/18/2019

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 152


Regional Office

Michael Jennings

VA File Number

Represented By:


07/29/2020

INTRODUCTION

The records reflect that you are a Veteran of the Gulf War Era, Peacetime and Vietnam Era. Youserved in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 toSeptember 30, 1997. We received your request for a Higher Level Review on March 12, 2020.Based on a review of the evidence listed below, we have made the following decision(s) on yourclaim. Please note your appeal for earlier effective date, back to October 1, 1007, for your serviceconnected psychiatric disability for Statement of the Case April 10, 2018, is currently within theBoard of Veterans' Appeals jurisdiction and is on their docket for review. Please also note, wereceived a Notice of Disagreement on May 28, 2013 for an earlier effective back to October 1,1997, for your calcified granuloma. This appeal will be addressed in the legacy review process. This higher level review will be reviewing the decision from the Statement of the Case datedJanuary 13, 2020 for in the inferred claim for increase received August 6, 2018 for yourpsychiatric and lung condition.

DECISION

Exhibit Page 153

1. Entitlement to an earlier effective date for the evaluation of post traumatic stress disorder withmajor depressive disorder, recurrent, moderate (previously rated as unspecified adjustmentdisorder under diagnostic code 9440) is denied. 2. Entitlement to an earlier effective date prior to August 6, 2018 for the increased evaluation of30 percent assigned to the (service connected sleep apnea with ) interstitial lung disease is notwarranted.

EVIDENCE

● VA Form 21-526 EZ: Application for Disability Compensation and Related CompensationBenefits, August 6, 2018

● Section (§) 5103 Notice, dated August 24, 2018● Rating Decision, dated October 15, 2018● VA letter, dated October 17, 2018● VA Examination, dated September 7, 2018● VA Form 21-4138, Statement in Support of Claim, received September 17, 2018● VA Form 27-0820 Report of General Information, dated September 17, 2018● VAMC (Veterans Affairs Medical Center) treatment records, Memphis, from September 30,

1997 through January 13, 2020● VA Examination, dated October 5, 2018● VA Form 21-4138, Statement in Support of Claim, received November 1, 2018● VA Form 21-4138, Statement in Support of Claim, received November 1, 2018● Notice of Disagreement, November 1, 2018● VA Form 21-4138, Statement in Support of Claim, received November 16, 2018● VA Form 27-0820 Report of General Information, dated December 28, 2018● VA Form 21-4138, Statement in Support of Claim, received December 31, 2018● VA Form 21-4138, Statement in Support of Claim, received January 14, 2019● VA Examination, dated January 23, 2019● VA Examination, dated March 6, 2019● VA Form 21-4138, Statement in Support of Claim, received June 1, 2019● VA Form 20-0995, Decision Review Request - Supplemental Claims, received June 1, 2019● VA letter, dated June 24, 2019● Statement of the Case, January 13, 2020● VA Form 27-0820 Report of General Information, dated January 13, 2020● VA Form 27-0820 Report of General Information, dated January 16, 2020● VA Form 9, February 18, 2020● VA Form 20-0996, Decision Review Request - Higher Level Review, received March 12,

2020● Higher Level Review Informal Conference, July 23, 2020


1. Entitlement to an earlier effective date for the evaluation assigned to the serviceconnected post traumatic stress disorder with major depressive disorder, recurrent,

Michael Jennings

2 of 5

Exhibit Page 154

moderate (previously rated as unspecified adjustment disorder under diagnostic code9440). We received your VA Form 21-526b on August 6, 2018, in which we inferred your claim forincrease for your acquired psychiatric disability. A VA examination was conducted anddemonstrated an increased evaluation to 70 percent was warranted. Therefore, Rating Decisiondated October 15, 2018 granted the increased evaluation for your acquired psychiatric disabilityto 70 percent, effective August 6, 2018. We received your Notice of Disagreement, disagreeing with the effective date on November 1,2018, and the effective date August 6, 2018 for the 70 percent evaluation was continued inStatement of the Case dated January 13, 2020. Please note, your appeal pending for earlier effective date of October 1, 1997 for a compensableevaluation for your acquired psychiatric disability from Statement of the Case dated April 10,2018 has been certified to the Board of Veterans' Appeals on July 18, 2018 and will be addressedby the Board of Veterans' Appeals. Per 38 CRF 3.400, except as otherwise provided, the effective date of an evaluation based on aninitial claim or supplemental claim will be the date of receipt of the claim or the date entitlementarose, whichever is later. As there is no evidence of a claim for increase for this disability priorto this inferred claim for increase received August 6, 2018, entitlement to an earlier effectivedate is not warranted. Entitlement to an earlier effective date for the evaluation of 70 percent assigned August 6, 2018for post traumatic stress disorder with major depressive disorder, recurrent, moderate has beendenied. (38 CFR 3.400) You are currently assigned a 70 percent evaluation for your unspecified adjustment disorder,claimed as acquired psychiatric disorder to include PTSD and anxiety based on: • Suspiciousness • Depressed mood • Suicidal ideation • Disturbances of motivation and mood • Chronic sleep impairment • Panic attacks more than once a week • Difficulty in adapting to stressful circumstances • Difficulty in adapting to work • Inability to establish and maintain effective relationships • Difficulty in adapting to a worklike setting • Anxiety • Difficulty in establishing and maintaining effective work and social relationships • Occupational and social impairment with reduced reliability and productivity The overall evidentiary record shows that the severity of your disability most closelyapproximates the criteria for a 70 percent disability evaluation.

Michael Jennings

3 of 5

Exhibit Page 155

A higher evaluation of 100 percent is not warranted for posttraumatic stress disorder unless theevidence shows total occupational and social impairment, due to such symptoms as: • gross impairment in thought processes or communication • persistent delusions or hallucinations • grossly inappropriate behavior • persistent danger of hurting self or others • intermittent inability to perform activities of daily living (including maintenance of minimalpersonal hygiene) • disorientation to time or place • memory loss for names of close relatives, own occupation, or own name. Laws and Regulations applicable to this issue: 38 CFR §3.102 Reasonable doubt. 38 CFR §3.103 Procedural due process and appellate rights. 38 CFR §3.104 Finality of decisions. 38 CFR §3.159 Department of Veterans Affairs assistance in developing claims. 38 CFR §3.400 Effective Dates - General. 2. Entitlement to an earlier effective date prior to August 6, 2018 for the increasedevaluation of 30 percent assigned to the (service connected sleep apnea with ) interstitiallung disease. We received your VA Form 21-526b on August 6, 2018, in which we inferred your claim forincrease for your calcified granuloma of the lungs. A VA examination was conducted anddemonstrated an increased evaluation to 30 percent was warranted. Therefore, Rating Decisiondated October 15, 2018 granted the increased evaluation for interstitial lung disease (previouslyevaluated as calcified granuloma of the lungs/lung disorder, low long volume and asbestosis)with a 30 percent evaluation, effective August 6, 2018. We received your Notice of Disagreement, disagreeing with the effective date on November 1,2018, and the effective date of August 6, 2018 for the 30 percent evaluation was continued inStatement of the Case dated January 13, 2020. Please note, your Notice of Disagreement received May 28, 2013 for an earlier effective date ofOctober 1, 1997 for a compensable evaluation for calcified granuloma will be addressed bylegacy appeals process in a separate Statement of the Case. Except as otherwise provided, the effective date of an evaluation based on an initial claim orsupplemental claim will be the date of receipt of the claim or the date entitlement arose,whichever is later. As there is no evidence of a claim for increase for this disability prior to thisinferred claim for increase received August 6, 2018, entitlement to an earlier effective date is notwarranted. Entitlement to an earlier effective date for the evaluation assigned for sleep apnea with interstitial

Michael Jennings

4 of 5

Exhibit Page 156

lung disease has been denied. (38 CFR 3.400) You are currently assigned a 50 percent evaluation for your sleep apnea with interstitial lungdisease based on: • Requires use of breathing assistance device such as continuous airway pressure (CPAP)machine Additional symptom(s) include: • Persistent day-time hypersomnolence A higher evaluation of 100 percent is not warranted for sleep apnea syndromes unless theevidence shows: • Carbon dioxide retention; or, • Chronic respiratory failure; or, • Cor pulmonale; or, • Tracheostomy required. (38 CFR 4.124a) A higher evaluation of 100 percent is not warranted unless FVC is less than 50 percent predicted;or DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15ml/kg/min oxygen consumption with cardiorespiratory limitation; or cor pulmonale orpulmonary hypertension; or outpatient oxygen therapy is required. (38 CFR 4.96, 38 CFR 4.97) Laws and Regulations applicable to this issue: 38 CFR §3.102 Reasonable doubt. 38 CFR §3.103 Procedural due process and appellate rights. 38 CFR §3.104 Finality of decisions. 38 CFR §3.159 Department of Veterans Affairs assistance in developing claims. 38 CFR §3.400 Effective Dates - General.

REFERENCES:


Michael Jennings

5 of 5

Exhibit Page 157

ACTIVE DUTY


08/30/1973 11/29/1976 Army Honorable

11/05/1979 09/30/1997 Army Honorable

LEGACY CODES

ADD'L SVCCODE

COMBATCODE

SPECIALPROV CDE

FUTURE EXAMDATE

1 None

JURISDICTION: Higher Level Review Received 03/12/2020

ASSOCIATED CLAIM(s): 031; Higher-Level Review Rating; 03/12/2020


9411 POST TRAUMATIC STRESS DISORDER WITH MAJOR DEPRESSIVE DISORDER,

RECURRENT, MODERATE (PREVIOUSLY RATED AS UNSPECIFIEDADJUSTMENT DISORDER UNDER DIAGNOSTIC CODE 9440)Service Connected, Peacetime, IncurredStatic Disability30% from 03/30/2009 (9440)70% from 08/06/2018Original Date of Denial: 02/18/2010

6833-6847 SLEEP APNEA WITH INTERSTITIAL LUNG DISEASE ASSOCIATED WITH POSTTRAUMATIC STRESS DISORDER WITH MAJOR DEPRESSIVE DISORDER,RECURRENT, MODERATE (PREVIOUSLY RATED AS UNSPECIFIEDADJUSTMENT DISORDER UNDER DIAGNOSTIC CODE 9440)Service Connected, Peacetime, SecondaryStatic Disability50% from 08/06/2018Original Date of Denial: 12/07/2011

5276 BILATERAL, PES PLANUS WITH PLANTAR FASCIITIS AND ARTHRITIS(PREVIOUSLY EVALUATED SEPARATELY UNDER DIAGNOSTIC CODE 5299-5284)Service Connected, Peacetime, Incurred


Page 1 of 607/29/2020

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 158

Static Disability30% from 05/16/2015

5242 DEGENERATIVE ARTHRITIS OF THE THORACOLUMBAR SPINE ASSOCIATEDWITH BILATERAL, PES PLANUS WITH PLANTAR FASCIITIS AND ARTHRITIS(PREVIOUSLY EVALUATED SEPARATELY UNDER DIAGNOSTIC CODE 5299-5284)Service Connected, Peacetime, SecondaryStatic Disability20% from 11/07/2017



5284-5276 BILATERAL PLANTAR FASCIITIS WITH PES PLANUS AND ARTHRITIS(FORMERLY EVALUATED AS BILATERAL FOOT CONDITION, PARTIAL LOSSOF ARCHES)Service Connected, Peacetime, IncurredStatic Disability10% from 10/01/1997 to 04/01/2009

7508 NEPHROLITHIASIS (ALSO CLAIMED AS KIDNEY STONES, HYDRONEPHROSIS,AND HYDROURETER)Service Connected, Peacetime, IncurredStatic Disability10% from 10/01/1997

7804 SCARS (2), BILATERAL BREASTS, STATUS POST BILATERAL SUBCUTANEOUSMASTECTOMYService Connected, Peacetime, IncurredStatic Disability0% from 10/01/1997 (7805)10% from 10/23/2008

6012 PRIMARY OPEN ANGLE GLAUCOMA, BILATERALService Connected, Peacetime, IncurredStatic Disability10% from 03/30/2009

5299-5284 PES PLANUS OF LEFT FOOT WITH PLANTAR FASCIITIS AND ARTHRITIS


Page 2 of 607/29/2020

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 159

(PREVIOUSLY EVALUATED TOGETHER WITH RIGHT FOOT DISABILITIESUNDER DIAGNOSTIC CODE 5276)Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015

5299-5284 PES PLANUS OF THE RIGHT FOOT WITH PLANTAR FASCIITIS AND ARTHRITISPREVIOUSLY EVALUATED TOGETHER WITH LEFT FOOT DISABILITIESUNDER DIAGNOSTIC CODE 5276Service Connected, Peacetime, IncurredStatic Disability10% from 04/01/2009 to 05/16/2015

6699-6600 CALCIFIED GRANULOMA OF THE LUNGS (ALSO CLAIMED AS LUNGDISORDER, LOW LUNG VOLUME, AND ASBESTOSIS) (PREVIOUSLYEVALUATED UNDER DIAGNOSTIC CODE 6899-6846) [Asbestos]Service Connected, Gulf War, IncurredStatic Disability0% from 10/01/199710% from 01/07/2010 to 08/06/2018



40% from 10/01/1997 (Bilateral factor of 2.7 Percent for diagnostic codes 5010, 5276, 5010)60% from 03/30/2009 (Bilateral factor of 2.7 Percent for diagnostic codes 5010, 5276, 5010)70% from 04/01/2009 (Bilateral factor of 3.4 Percent for diagnostic codes 5010, 5284, 5284, 5010)80% from 05/16/2015 (Bilateral factor of 4.3 Percent for diagnostic codes 5010, 5276, 5010)100% from 08/06/2018 (Bilateral factor of 4.3 Percent for diagnostic codes 5010, 5276, 5010)

NOT SERVICE CONNECTED/NOT SUBJECT TO COMPENSATION (8.NSCPeacetime)

6027 CATARACTS

Not Service Connected, Peacetime, Not Incurred/Caused by Service


6099-6006 OPTIC NERVE DAMAGE


Page 3 of 607/29/2020

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 160

7101 HIGH BLOOD PRESSURENot Service Connected, Peacetime, No Diagnosis


7346 GASTROESOPHAGEAL REFLUX DISEASE ASSOCIATED WITH POSTTRAUMATIC STRESS DISORDER WITH MAJOR DEPRESSION DISORDER,RECURRENT MODERATE (PREVIOUSLY RATED AS UNSPECIFIEDADJUSTMENT DISORDER UNDER DIAGNOSTIC CODE 9440Not Service Connected, Peacetime, Not Aggravated by Service


7399-7323 DIVERTICULA DISEASENot Service Connected, Peacetime, No Diagnosis


7913 DIABETES MELLITUS TYPE II ASSOCIATED WITH CALCIFIED GRANULOMAOF THE LUNGS (ALSO CLAIMED AS LUNG DISORDER, LOW LUNG VOLUME,AND ASBESTOSIS) (PREVIOUSLY EVALUATED UNDER DIAGNOSTIC CODE6899-6846)Not Service Connected, Peacetime, Not Incurred/Caused by ServiceStatic Disability


9432 ADDICTION DISORDERWillful Misconduct, Peacetime, Substance Abuse

9440 ANXIETY DISORDERNot Service Connected, Peacetime, Not Incurred/Caused by Service


9999-9913 DENTAL TRAUMANot Service Connected, Peacetime, Not Incurred/Caused by Service


ANCILLARY DECISIONS


Page 5 of 607/29/2020

NAME OF VETERAN


SEAN A KENDALL

COPY TO

Exhibit Page 162

Explanation of Payment We Have Withheld Benefits You are not allowed to receive full military retired pay and full VA compensation at the sametime. The following will provide an explanation of how this works: ● If your VA compensation is less than your military retired pay, you will receive

compensation payments. The service department will pay you the difference between yourcompensation and your military retired pay.

● If your VA compensation is greater than your military retired pay, we will pay youcompensation, and you will not receive military retired pay.

For now, we must withhold part of your compensation until January 1, 2014. We must do this toprevent a double payment. By working together with the service department, we will make sureyou get your full combined payment. Important information: VA compensation isn’t taxable. Please contact the Internal RevenueService for tax information.

Concurrent Receipt of VA Compensation and Military Retired PayYou may be eligible for full or partial concurrent receipt of VA compensation and militaryretired pay under the Combat-Related Special Compensation (CRSC) and/or Concurrent Retiredand Disability Pay (CRDP) programs. Your retired pay center (RPC) has been notified of thisdecision. If your RPC determines that any withholdings from your VA compensation should beretroactively adjusted due to CRSC/CRDP eligibility, VA will be notified and will adjust yourVA compensation accordingly.

● To be eligible for CRDP, your combined VA service-connected evaluation must be 50%or greater and, if retired due to disability, you must have at least 20 years of service. Youdo not need to apply for CRDP.

● To be eligible for CRSC, you must have a VA service-connected disability that has beendeemed “combat-related” by your branch of service. VA cannot make that determination.CRSC entitlement is not automatic. To apply for CRSC, you must submit DD Form2860, Claim For Combat-Related Special Compensation, to the address for your branchof service, as shown on the first page of the form. You can download DD Form 2860from this web address: http://www.dtic.mil/whs/directives/forms/eforms/dd2860.pdf.Please note that to receive CRSC for a VA service-connected disability you mustspecifically apply for CRSC for that disability, even if you have already been awardedCRSC for other disabilities previously service-connected by VA.

More information on CRSC and CRDP can be found at the following web site: http://www.dfas.mil/dfas/retiredmilitary/disability/payment.html, or by calling your RPC asshown below:


Page 5Exhibit Page 168

Education, Training, and Student Loans:● Education loans: For more information, please call 1-888-GIBILL-1 (1-888-442-4551) or

visit www.vets.gov/education.

● Veterans with student loans: For more information, please call 1-888-303-7818 or visitwww.disabilitydischarge.com/.

Medical Care and Treatment:● Mental Health Counseling: For more information, please visit www.myhealth.va.gov/mhv-

portal-web/.

● Blind Rehabilitation: For more information, please visit www.va.gov/blindrehab/.

Home Adaptations/Loans, Automobile Benefits, and Life Insurance:● Loans: For more information, please visit www.benefits.va.gov/homeloans/.

● Funding Fee Refund: If you paid a funding fee at the closing of a VA guaranteed home loanand your VA compensation award provides an effective rating date that was prior to yourloan closing date, then you may be eligible for a funding fee refund. Please contact eitheryour current mortgage servicer or a VA Regional Loan Center at (877) 827-3702 to beginthe refund process.

Armed Forces Commissary and Exchange:● Armed Forces Commissary and Exchange: For more information, please visit

www.ebenefits.va.gov to locate your Regional Benefit Office, please visitwww.vets.gov/facility-locator/.


Page 7Exhibit Page 170


Regional Office

Michael Jennings

Represented By:


09/14/2020

INTRODUCTION

The records reflect that you are a Veteran of the Gulf War Era, Peacetime and Vietnam Era. Youserved in the Army from August 30, 1973 to November 29, 1976 and from November 5, 1979 toSeptember 30, 1997. The Board of Veterans Appeals made their decision on your appeal onDecember 12, 2019. We have implemented their decision based on the evidence listed below. Note: A decision of entitlement to service connection for gastroesophageal reflux disease(GERD) and bilateral cataracts, and entitlement to a disability rating higher than 10 percent forbilateral glaucoma, is remanded. You will be notified regarding these appeal issues in futurecorrespondence.

DECISION

Entitlement to an effective date of October 1, 1997, for the grant of service connection forbilateral glaucoma is established. A non-compensable evaluation is assigned from October 1,1997. The non-compensable evaluation is increased to 10 percent from April 2, 2002.

Exhibit Page 171

EVIDENCE

● Board of Veteran's Appeals Decision/Remand, dated December 12, 2019● VA Examination, Memphis, dated August 13, 1998● VA Examination, Memphis, dated January 8, 2010● VA Examination, Memphis, dated May 16, 2015● VA Examination, Memphis, dated November 6, 2018 with Addendums dated February 6,

2019 and August 28, 2019● VAMC (Veterans Affairs Medical Center) treatment records, Memphis, from August 27,

1998 through September 7, 2020


Entitlement to an effective date prior to March 30, 2009 for the grant of service connectionfor bilateral glaucoma. The appeal for entitlement to an earlier effective date for the grant of service connection forbilateral glaucoma was decided by the Board of Veterans' Appeals (Board) on December 12,2019. This rating decision implements the Board's decision. Entitlement to an effective date ofOctober 1, 1997, but no earlier, for a grant of service connection for bilateral glaucoma has beenassigned. A non-compensable evaluation is assigned from October 1, 1997, the first day following yourrelease from active service. We have assigned a noncompensable evaluation for your primary open angle glaucoma, bilateralbased on: • No incapacitating episodes noted • Visual impairment as described below (38 CFR 4.31) Note: In every instance where the schedule does not provide a zero percent evaluation for adiagnostic code, a zero percent evaluation shall be assigned when the requirements for acompensable evaluation are not met. {38 CFR §4.31} Your eyes show normal visual acuity bilaterally. Your eyes show normal visual fields bilaterally. A higher evaluation of 10 percent is not warranted for angle-closure glaucoma unless theevidence shows: • Continuous medication is required. (38 CFR 4.75, Historical 38 CFR 4.79 effective prior toMay 13, 2018) Additionally, higher evaluations are based on more severe levels of visual impairment. (38 CFR4.75, Historical 38 CFR 4.79 effective prior to May 13, 2018)

Michael Jennings

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Exhibit Page 172

The non-compensable evaluation is increased to 10 percent from April 2, 2002, the date yourVAMC treatment records note Timolol Soln (topical ophthalmic) treatment for your condition. We have assigned a 10 percent evaluation for your primary open angle glaucoma, bilateral basedon: • Continuous medication is required Your eyes show normal visual acuity bilaterally. Your eyes show normal visual fields bilaterally. A higher evaluation of 20 percent is not warranted for angle-closure glaucoma unless theevidence shows: • Incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, duringthe past 12 months. (38 CFR 4.75, Historical 38 CFR 4.79 effective prior to May 13, 2018) Additionally, higher evaluations are based on more severe levels of visual impairment. (38 CFR4.75, Historical 38 CFR 4.79 effective prior to May 13, 2018) Laws and Regulations applicable to this issue: 38 CFR §3.1 Definitions. 38 CFR §3.4 Compensation. 38 CFR §3.159 Department of Veterans Affairs assistance in developing claims. 38 CFR §3.321 General rating considerations. 38 CFR §3.400 Effective Dates - General. 38 CFR §4.1 Essentials of evaluative rating. 38 CFR §4.2 Interpretation of examination reports. 38 CFR §4.6 Evaluation of evidence. 38 CFR §4.7 Higher of two evaluations. 38 CFR §4.10 Functional impairment. 38 CFR §4.31 Zero percent evaluations. 38 CFR §4.79 Schedule of ratings-eye. (6012)

REFERENCES:


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Exhibit Page 173

November 30, 2020

MICHAEL JENNINGSPO BOX 54192MILLINGTON, TN 38054

In reply, refer to:014/HRGB/BLMFile Number:

JENNINGS, Michael

Dear Mr. JENNINGS:

You are scheduled for a virtual tele-hearing with a Veterans Law Judge (VLJ) of the Boardof Veterans’ Appeals. You will need to sign in to the BVA Video Connect Conference 10 – 15minutes prior to the start your hearing.

What do I need to do before the hearing?

First, ensure that you have a strong WIFI connection. At least 48 – 72 hours prior to yourhearing, you will need to visit the VA Video Connect website athttps://vc.va.gov/webapp2/conference/test_call?name=Veteran&join=1 to test whether yourpersonally owned device, and signal/bandwidth is compatible with VA Video Connect.

You are encouraged to conduct your hearing under the same conditions in which yousuccessfully completed the test above. If you are unable to connect to your virtual tele-hearing, or require technical assistance regarding VA Video Connect, please contact theNational Telehealth Technology Help Desk at 866-651-3180 or 703-234-4483 Mondaythrough Saturday, 7am through 11pm Eastern Standard Time.

What should I expect on the day of the hearing?

Please sign in to the BVA Video Connect Conference 10-15 minutes prior to the start time ofyour hearing. You should expect your hearing to last approximately 30 minutes. Your virtualtele-hearing is scheduled for:

BOARD 2.0VA VIDEO CONNECTVIRTUAL HEARING CONFERENCEJanuary 5, 2021 @ 1030 (EST)

What if I need to reschedule my hearing?

Send a written request to reschedule your hearing at least two weeks before your scheduledhearing explaining why you have “good cause” for rescheduling the hearing. If your hearing is less than 15 days away, or you missed your hearing and would like to reschedule, youmust file a written motion for a new hearing date within 15 days of the originally scheduled

Exhibit Page 174

hearing date, explaining why you missed the hearing and/or why a timely request for a newhearing date could not have been submitted.

A VLJ will review your request and decide if the hearing can be rescheduled. You will get adecision about rescheduling your hearing in the mail. Examples of good cause include, butare not limited to, illness of the appellant and/or representative, difficulty in obtainingnecessary records, and unavailability of a necessary witness.

What if I need to withdraw (cancel) my hearing?

If you no longer want a hearing, please send a written request to withdraw or cancel yourhearing by fax to (844) 678-8979, or by mail to Board of Veterans’ Appeals, P.O. Box 27063,

Washington, DC 20038.

May I submit new evidence?

If your appeal is an Appeals Modernization Act (AMA) appeal, you may only submitevidence at the hearing or within a 90-day window following the scheduled hearing date. Ifyou withdraw your hearing, you may submit evidence within 90 days following receipt of thewithdrawal. If you miss your hearing and do not request to reschedule, you may still submitadditional evidence up to 90 days after the date your hearing was scheduled.

If your appeal is a Legacy (Pre-AMA) appeal, you may submit evidence at the hearing or upuntil the date a decision is rendered by the Board.

If you have questions about your appeal, you should contact your representative, if you have one. Toobtain the status of your appeal, please call 1-800-827-1000 or visit www.va.gov/claim-or-appeal-status/.

Sincerely yours,

Christopher A. SantoroDeputy Vice Chairman

CC: Sean A. Kendall, Attorney

Exhibit Page 175

CERTIFICATION OF APPEAL14. REMARKS (Continue from front page)

VA FORM 8, JUN 2008 PAGE 2 OF 2Exhibit Page 177

CERTIFICATION OF APPEAL14. REMARKS (Continue from front page)

VA FORM 8, JUN 2008 PAGE 2 OF 2Exhibit Page 179

Exhibit Page 189

Exhibit Page 190

Exhibit Page 191

Exhibit Page 192

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File Number: MICHAEL JENNINGS

What You Should Do If You Disagree With Our Decision

If you do not agree with our decision, you must complete and return to us the enclosed VA Form 21-0958, Notice of Disagreement, in order to initiate your appeal. You have one year from thedate of this letter to appeal the decision. The enclosed VA Form 4107, “Your Rights to AppealOur Decision,” explains your right to appeal.

What is eBenefits?

eBenefits provides electronic resources in a self-service environment to Servicemembers, Veterans, and their families. Use of these resources often helps us serve you faster! Through the eBenefits website you can:

Submit claims for benefits and/or upload documents directly to the VA Request to add or change your dependents Update your contact and direct deposit information and view payment history Request a Veterans Service Officer to represent you Track the status of your claim or appeal Obtain verification of your military service, civil service preference, or VA benefits And much more!

Enrolling in eBenefits is easy. Just visit www.eBenefits.va.gov for more information. If you submit a claim in the future, consider filing through eBenefits. Filing electronically, especially if you participate in our fully developed claim program, may result in a faster decision than if you submit your claim through the mail.

Do You Have Questions Or Need Assistance?

If you have any questions, you may contact us by telephone, e-mail, or letter.

If you Here is what to do. Telephone Call us at 1-800-827-1000. If you use a

Telecommunications Device for the Deaf (TDD), the Federal number is 711.

Use the Internet Send electronic inquiries through the Internet at https://iris.va.gov.

Write VA now uses a centralized mail system. For all written communications, put your full name and VA file number on the letter. Please mail or fax all written correspondence to the appropriate address listed on the

Exhibit Page 193

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File Number: MICHAEL JENNINGS

attached Where to Send Your Written Correspondence.

In all cases, be sure to refer to your VA file number

If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at https://iris.va.gov.

We sent a copy of this letter to your representative, TDVS, whom you can also contact if you have questions or need assistance.

Sincerely yours,

Regional Office Director

Enclosures: VA Form 4107 VA Form 21-0958 VA Form 21-526ez Where to Send Your Written Correspondence

cc: TDVS

Exhibit Page 194

US Court of Appeals for Veterans Claims

Documents

Transcript of US Court of Appeals for Veterans Claims