Citation Nr: 0303413 Decision Date: 02/27/03 Archive Date: 03/05/03 DOCKET NO. 02-08 141 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral knee arthritis. 2. Entitlement to service connection for obesity. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from November 1968 to February 1972. This appeal arises from an April 2001 rating action that denied direct service connection for bilateral knee arthritis, obesity, and hypertension. In September 2002, the veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board of Veterans Appeals (Board) at the RO. In February 2003, the undersigned VLJ granted the veteran's January 2003 motion to advance this appeal on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 and 38 C.F.R. § 20.900(c). The issues of service connection for obesity and hypertension are the subject of the REMAND portion of this decision, below. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Bilateral knee arthritis was first manifested many years post service, and there is no competent medical evidence linking it to service. CONCLUSION OF LAW The criteria for service connection for bilateral knee arthritis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312- 13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The VCAA and its implementing regulations essentially eliminate the concept of the well- grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. They also include an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)). Having considered the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim for service connection for bilateral knee arthritis has been accomplished. In the April 2001 rating action, the May 2002 Statement of the Case (SOC), and the October 2000, February 2001, and March 2002 letters from the RO, the veteran and his representative were notified of the law and regulations governing entitlement to the benefit he seeks, the evidence which would substantiate his claim, and the evidence that had been considered in connection with his appeal. Thus, the Board finds that he has received sufficient notice of the information and evidence needed to support his claim, and been provided ample opportunity to submit information and evidence. Additionally, the Board notes that in aforementioned 2001 and 2002 documents, the RO variously and specifically informed the veteran of the VCAA and its requirements; what the evidence had to show to establish entitlement to the benefit he sought; what information or evidence the VA still needed from the veteran; what evidence the VA had retrieved and considered in his claims; what evidence he had to furnish; and what he had to do to obtain assistance from the VA in connection with his appeal. In addition, the 2001 RO letter informed the veteran that the VA would make reasonable efforts to help him get evidence necessary to support his claim, such as medical records, if he gave the VA enough information about such records so that the VA could request them from the person or agency that had them. The RO notified the veteran that the VA needed him to furnish the name and address of the medical provider, the time frame covered by the records, and the condition for which he was treated, and that the VA would request such records on his behalf if he signed a release authorizing the VA to request them. The veteran was notified that he could help with his claim by informing the VA of any additional information or evidence that he wanted the VA to try to obtain for him; where to send additional evidence concerning his appeal; and where he could request assistance if needed. Accordingly, the Board finds that the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence, if any, will be retrieved by the VA has been met. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159). The Board also finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. Extensive VA and private medical records of claimed post-service treatment and evaluation of the veteran, as well as medical records underlying a Social Security Administration (SSA) disability determination in the veteran's case, have been obtained by the RO, and the veteran has submitted copies of private medical records; all records and responses from claimed medical providers have been associated with the claims folder. The veteran was afforded the opportunity for a Board hearing, and he testified at such a hearing at the RO before the undersigned VLJ in September 2002. Significantly, the veteran has not identified, and the claims folder does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In an April 2002 statement, the veteran stated that there was no additional evidence in his case, and he requested that a decision on his claim be made based on the evidence of record. Under these circumstances, the Board finds that, at this juncture, adjudication of the claim for service connection for bilateral knee arthritis, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). I. Background The service medical records are completely negative for findings or diagnoses of any knee disability. The lower extremities were normal on separation examination of August 1971. Numerous post-service medical records dated from 1981 to 1988 from Kaiser Permanente and the St. Teresa Community Hospital are negative for findings or diagnoses of any knee disability. December 1990 and June 1992 VA outpatient records noted degenerative joint disease of the knees. May 1991 VA X-rays revealed bilateral knee osteoarthritis. In August 1993, D. Weiss, M.D., diagnosed arthralgia of the knees. On April 1996 examination for an SSA disability determination by P. Blakely, M.D., the impression was bilateral knee pain, and X-rays revealed bilateral knee degenerative arthritis. May 1997 VA X-rays revealed advanced bilateral knee osteoarthritis. The outpatient records of D. Bruton, M.D., from 1997 to 1999 document the veteran's complaints of knee pain and osteoarthritis. On February 2001 examination by W. Ritchie, M.D., X-rays revealed bilateral knee osteoarthritis. 2001 records from the University of New Mexico University Hospital show follow-up evaluations of the veteran for bilateral knee osteoarthritis. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Where a veteran served continuously for 90 days or more during a period of war, and arthritis becomes manifest to a degree of 10% within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Such a determination requires a finding of a current disability that is related to an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, there is no evidence of any knee disability including arthritis in service or for many years thereafter. This first objective demonstration of such disorder was that noted in VA medical records of December 1990, over 18 years post service. There is also no evidence of a nexus between any currently-diagnosed bilateral knee arthritis and the veteran's military service. While the post-service record includes extensive VA and private medical records of treatment and evaluation of the veteran for numerous complaints and disorders including bilateral knee arthritis from 1981 to 2001, as well as extensive medical records underlying an SSA disability determination, none of these records include any medical opinion linking such knee arthritis to his military service or any incident thereof. The Board has considered the veteran's assertions in connection with the claim on appeal. However, as a layman without the appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter-such as whether there is a medical relationship between a current disability and an incident of his military service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Significantly, the veteran has neither presented nor alluded to the existence of any medical evidence that would support his assertions that he currently has bilateral knee arthritis that is due to any incident of his service. For all the foregoing reasons, the claim for service connection for bilateral knee arthritis must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence neither supports a finding that, nor is in relative equipoise on the question of whether, there is a medical nexus between any current bilateral knee arthritis and the veteran's military service, as a result of which that doctrine is not applicable to this appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral knee arthritis is denied. REMAND Appellate review discloses that, at the September 2002 Board hearing, the veteran claimed service connection for a post- traumatic stress disorder (PTSD) and an eating disorder in connection with his current appeal on the issue of service connection for obesity. He claimed that his obesity is part and parcel of his PTSD/eating disorder, based on the September 2002 medical opinion of S. Cave, Ph. D., diagnosing PTSD secondary to a combat situation and an eating disorder. However, the RO has not adjudicated the claims for service connection for PTSD or an eating disorder. The Board finds that the issue of service connection for obesity is thus inextricably intertwined with the latter 2 issues, and that the RO must thus adjudicate them prior to an appellate decision on the obesity issue. Appellate review also discloses that in August 2002, J. Rhoades, M.D., opined that the veteran developed hypertension in service. The veteran has not been afforded a VA cardiovascular examination, and the Board finds that such would be helpful in determining the date of onset and etiology of his current hypertension. The Board, above, has denied direct service connection for bilateral knee arthritis. The veteran has also claimed service connection for his bilateral knee disorder as secondary to his obesity, based on the February 1997 medical opinion of H. Bruton, M.D., that he had arthritic complaints arising from his obesity, and the February 2001 medical opinion of W. Ritchie, M.D., that his bilateral knee arthritis was being definitely aggravated by his body habitus. If the RO adjudicates the veteran's obesity to be part and parcel of any service-connected eating disorder, the Board finds that the RO should then proceed to adjudicate his new claim for service connection for a bilateral knee disorder as secondary to such newly-service-connected obesity, to include consideration of Allen v. Brown, 7 Vet. App. 439 (1995), and the matter of whether he suffers from additional knee disability as a result of its aggravation by such service-connected disability. In reaching a determination of this issue, the RO should consider the propriety of a VA orthopedic examination to obtain a medical opinion as to the effect of obesity upon the veteran's bilateral knee disorder. To establish service connection for PTSD, there must be medical evidence diagnosing the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed inservice stressor. If a claimed stressor is related to combat, service department evidence that the appellant engaged in combat will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. See 38 C.F.R. § 3.304(f) (2002); West v. Brown, 7 Vet. App. 70, 75 (1994); Moreau v. Brown, 9 Vet. App. 389, 396 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). The existence of a valid stressor is a factual question for VA adjudicators (Wood v. Derwinski, 1 Vet. App. 190 (1991)), and the question of whether a specific event reported by a veteran as a stressor was a stressor is a question of fact for the Board to decide (Wilson v. Derwinski, 2 Vet. App. 614 (1992)). In adjudicating a claim for service connection for PTSD, the VA is required to evaluate supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. It must be determined whether the veteran was ever engaged in combat. If it is determined that the veteran was so engaged, then, with respect to the alleged stressors, the Board must apply the provisions of 38 U.S.C.A. § 1154(b) (West 2002) and 38 C.F.R. § 3.304(d) (2002) to determine if any claimed stressor was combat-related; see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993), and Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). If a claimed stressor is not combat-related, the veteran's lay testimony regarding inservice stressors is insufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Doran, supra, at 289; see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). It is necessary for the adjudicator to discuss the lay statements and testimony regarding any claimed inservice stressor, determine the credibility and probative value of such statements, and present a statement of reasons or bases for its determinations. Doran, supra, at 290. In this case, the veteran's complete service personnel records are not of record, and the Board thus finds that the RO should obtain them and associate them with the claims folder. The National Personnel Records Center (NPRC) has verified the veteran's active service from November 1968 to February 1972, and his service discharge report indicates that he served with the U.S. Army in Vietnam from 10 May to 26 December 1969 as a telephone switchboard operator. One available page from the veteran's Enlisted Qualification Record (DA Form 20) indicates that he served in that occupational capacity with Company C, 36th Signal Battalion, USARPAC from 16 May to 22 September 1969, and thereafter from 23 September 1969 with the 87th Signal Detachment C, 36th Signal Company, USARPAC. Another available page from DA Form 20 indicates that he participated in a campaign designated TET 69 Counter Offensive (per authority of AR 672-5-1), and received the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal. However, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) has not been contacted to attempt to verify whether participation in that campaign indicated that the veteran had engaged in combat in Vietnam. On the above-cited September 2002 psychological evaluation, the veteran related the onset of an eating disorder during basic training in service, when he suffered severe assaults to his self-esteem on the basis of his race and his tendency toward obesity. He also related troublesome memories of his Vietnam experiences that constitute potential stressors that have not been verified. He reported exposure to significant combat experiences, including observing many dead U.S. and enemy soldiers, including those aboard a helicopter that had been shot down and crashed, helping to load the dead into body bags, and often being shot at by snipers as he strung wire on top of telephone poles. On one occasion, a rocket reportedly landed near him, blowing him into the air and into a dirt embankment with a concussive force. On another occasion, he was on top of a telephone pole when a formation of helicopters approached and headed straight toward him, and he witnessed one crash directly in front of him after it was struck by sniper fire, after which he observed all dead aboard the helicopter. The record also contains August 2001 and September 2002 statements wherein the veteran claimed exposure to rocket attacks at a base camp located at Bear Cat, Vietnam. The above claimed stressors have not been submitted to USASCRUR for verification. The Board reiterates that, in approaching a claim for service connection for PTSD, the question of the existence of an event claimed as a recognizable stressor must be resolved by RO adjudicators. If the RO concludes that the record establishes the existence of such stressor(s), only then should the case be referred for a VA psychiatric examination for the purpose of determining the sufficiency of the stressor(s), and whether the remaining elements required to support the diagnosis of PTSD have been met. In referring such case for a VA examination, the RO should specify to the examiner precisely which stressor(s) have been accepted as established by the record, and the medical examiner must be instructed that only those events may be considered in determining whether a stressor(s)to which the veteran was exposed during service was of sufficient severity as to have resulted in current psychiatric symptoms. In other words, if the RO determines that the record does not establish the existence of alleged stressors, a VA psychiatric examination to determine whether PTSD due to service is present is pointless. Likewise, if the VA examiner renders a diagnosis of PTSD that is not clearly based upon stressors in service whose existence the RO has accepted, the VA examination would be inadequate for rating purposes. In an effort to assist the RO, the Board has reviewed the claims folder and identified certain assistance that must be rendered to comply with the VCAA. However, it is the RO's responsibility to ensure that all appropriate development is undertaken in this claim. Under the circumstances, this case is REMANDED to the RO for the following action: 1. The RO must review the claims folder and ensure that all notification and development action required by the VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) are fully complied with and satisfied. 2. The RO should contact the NPRC and obtain and associate with the claims folder the veteran's complete service personnel records, including a complete DA Form 20. 3. Thereafter, the RO should contact USASCRUR, 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3097, furnish them a copy of the paragraphs on pages 9 and 10 of this decision which contain details of the veteran's military service and claimed inservice stressors, as well as specific information about his military service, the organizations in which he served in Vietnam, and his duties therein (as contained in his service separation record and DA Form 20), and request them to verify for the record the abovementioned incidents the veteran has claimed to be Vietnam combat stressors. In addition, USASCRUR should be requested to verify for the record whether the campaign in which the veteran participated during his service in Vietnam from May to December 1969, designated in his service personnel records as the TET 69 Counter Offensive, per authority of AR 672-5-1, indicated that he engaged in combat in Vietnam. All documents and responses from USASCRUR should be associated with the claims folder. 4. After responses have been received from USASCRUR, the RO should furnish the veteran and his representative a copy of those responses and afford them an opportunity to respond thereto, to include submission of additional evidence and argument. All responses should be associated with the claims folder. 5. Thereafter, the RO should make a determination on the question of whether the veteran engaged in combat with the enemy in Vietnam. If the RO determines that the veteran did engage in combat and that any claimed stressor is related to such combat, the veteran's lay testimony and evidence regarding any claimed stressor must be accepted as conclusive as to its occurrence, and adjudication of the claim for service connection for PTSD should then be undertaken in accordance with the provisions of 38 U.S.C.A. § 1154(b). 6. If the RO determines that the veteran did not engage in combat with the enemy, or that the claimed stressors were not related thereto, the RO should then review the evidence and make a specific determination, based upon the complete record, as to whether the veteran did experience any alleged stressor, and whether the evidence is sufficient to establish the occurrence of such stressor(s). If - and only if - the RO determines that the record establishes the existence of a stressor, any such stressor should be specified for the record. 7. Following the completion of the foregoing, the veteran should be afforded a special VA psychiatric examination to determine whether any diagnosed PTSD and eating disorder is related to his military service. After a review of all pertinent evidence and evaluation of the veteran, the VA psychiatric examiner should determine whether he currently suffers from PTSD and/or an eating disorder as a result of his military experiences in Vietnam. The claims folder, to include any additional evidence received in connection with the above development, and a copy of this Remand Order must be made available to and reviewed by the examiner prior to the examination, and he should state for the record that he has reviewed them. He should comment as to whether a current diagnosis of PTSD is linked to a specific corroborated stressor event the veteran experienced in Vietnam pursuant to the diagnostic criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In determining whether or not the veteran has PTSD due to an inservice stressor, only the verified history detailed in the reports provided by USASCRUR and/or the RO may be relied upon. If PTSD and/or an eating disorder is found, the clinical findings and other factors to support the diagnoses should be set forth, to specifically include the etiology of the PTSD and a recitation of the stressor(s) relied upon to support the diagnosis. The examiner should render an opinion as to whether the veteran's obesity is a manifestation of any diagnosed eating disorder. 8. The veteran should be afforded a special VA cardiovascular examination to determine whether his hypertension is related to his military service. After a review of all pertinent evidence and evaluation of the veteran, the physician should render an opinion as to whether it is at least as likely as not that hypertension had its onset in service. If not, the examiner should state the approximate date of onset of the veteran's hypertension. In rendering the opinion, the examiner should consider the August 2002 opinion of J. Rhoades, M.D. All clinical findings, and the reasons and bases for the opinions, should be clearly set forth in a typewritten report. The claims folder, to include any additional evidence received in connection with the above development, and a copy of this Remand Order must be made available to and reviewed by the examiner prior to the examination, and he should state for the record that he has reviewed them. 9. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development has been conducted and completed, including documentation of all requested medical comments, and all notification and development required by the VCAA. If any development is incomplete, appropriate corrective action should be undertaken. 10. Thereafter, the RO should adjudicate the claims for service connection for PTSD and an eating disorder, to include the matter of whether the veteran's obesity is part and parcel of any eating disorder, and readjudicate the claim for service connection for hypertension. 11. If the veteran's obesity is adjudicated to be part and parcel of any service-connected eating disorder, the RO should then proceed to adjudicate his new claim for service connection for a bilateral knee disorder as secondary to such service- connected obesity, to include consideration of Allen v. Brown, 7Vet. App. 439 (1995), and the matter of whether he suffers from additional knee disability as a result of its aggravation by such service-connected disability. In reaching a determination of this issue, the RO should specifically consider the February 1997 medical opinion of H. Bruton, M.D., and the February 2001 medical opinion of W. Ritchie, M.D., and consider the propriety of a VA orthopedic examination to obtain a medical opinion as to the effect of obesity upon the veteran's bilateral knee disorder. 12. If the claims for service connection for PTSD and/or an eating disorder and secondary service connection for a bilateral knee disorder are denied, the veteran and his representative should be notified of the requirement to file a Notice of Disagreement therewith if he wishes to appeal, and after issuance of an SOC, the requirement that he perfect his appeal by filing a timely Substantive Appeal. If the decision with respect to the claims for service connection for obesity and hypertension remains adverse to the veteran, he and his representative should be furnished an appropriate Supplemental SOC, and the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ______________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.