Citation Nr: 0526129 Decision Date: 09/23/05 Archive Date: 10/05/05 DOCKET NO. 03-32 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a foot fungal disorder. 2. Entitlement to service connection for disability of the right side of the face due to injury. 3. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty in the United States Army from June 1975 to June 1978. She also had additional unverified inactive service in the United States Army Reserve from June 1978 to June 1980. In addition, she apparently also participated in the Air Force ROTC program at the Fayetteville State University from June 1980 to April 1982. In August 2005, a hearing was held at the Board of Veterans' Appeals (Board) in Washington, DC before the undersigned Veterans Law Judge who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107. A transcript of that hearing has been associated with the claims file. The appellant submitted additional medical evidence concerning her claim for service connection for a psychiatric disorder. However, she did not provide a waiver of review of that evidence by the agency of original jurisdiction and therefore return to the RO of evidence received directly by the Board is required. 38 C.F.R. § 20.1304. The issue of entitlement to service connection for a psychiatric disorder is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The appellant was treated on one occasion in service for athlete's foot; the fungal condition was acute and transitory. 2. The service medical records do not contain any information concerning an injury to the right side of the face. 3. The appellant does not currently experience any fungal disorder of the feet or any disability of the right side of the face. CONCLUSION OF LAW Service connection for a fungal disorder of the feet or for disability of the right side of the face due to injury is not warranted. 38 U.S.C.A. §§ 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection suggests many factors, but basically it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in or aggravated by service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). There must be medical evidence of a nexus relating an in-service event, disease, or injury and any current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). The appellant testified at her August 2005 Board hearing that she had first been treated for fungus on her feet in service in 1978, that she had continued to have problems since service with fungus on her feet and that the condition never went away. She stated that she had had treatment for the fungal condition several times since her release from service. She said that she did not remember the names of the doctors who had treated her in the 1980s, and that she was unable to find out their names. The appellant further testified that she injured her face in a parachuting incident in service. She said that she was treated at the time at the troop infirmary and that she did not get any stitches for the injury. The appellant stated that she never received any treatment after service for the claimed facial injury. She described the disability as her face being "just flat on one side." She also said that she suffered from temporomandibular joint (TMJ) problems. The appellant testified that she took prednisone for another condition and that this medication seemed to help her facial condition. Review of the appellant's service medical records does not reveal any treatment of the right side of the appellant's face. She did receive stitches in November 1977; these were located in the front area of her head. In March 1978, the appellant sought treatment for her left foot. Physical examination revealed scaling and peeling of tissue between toes. The clinical assessment was athlete's foot fungus. The appellant underwent a separation medical examination in April 1978; the examiner described her feet and her skin as normal. Review of the appellant's post-service medical records reveals that she received medical care from various private providers; the associated medical records are dated between 1990 and 2003. None of these private medical records contains any diagnosis of athlete's foot or of any other rash or fungal infection of either of the appellant's feet. Likewise, there is no diagnosis of any residuals of injury to the right side of the appellant's face. Nor is there any diagnosis of TMJ problems. There is no indication in the private records that the appellant complained of any fungal infection of her feet or of any right facial injury residuals. The appellant's VA treatment records in the claims file are dated between 1999 and 2001. In November 1999, the appellant presented with a generalized rash over her legs and buttocks. This had been present for one week. The clinical assessment was contact dermatitis. In June 2000, the appellant sought treatment after she suffered trauma to her left third toe. The clinical note of July 28, 2000 indicates that the appellant's skin was without any rash on examination. In July 2001, the appellant complained of rashes under both eyes. The appellant sought treatment for a lesion on her right cheek in October 2001; the associated clinical note indicates that she had previously been seen by a dermatologist who had scraped her face and said that it was a fungus. On physical examination, there was a hyperpigmented lesion with evidence of irritation in the surrounding area. The appellant contends that she is entitled to service connection for a fungal disorder of the feet and for the residuals of a parachuting injury to the right side of her face. Initially, the Board notes that the appellant has presented her own statements regarding the claimed conditions being etiologically related to her military service. However, the record does not show that she is a medical professional, with the training and expertise to provide clinical findings regarding diagnosis or the relationship between any incident of service and the development of any claimed condition. Consequently, her statements are credible concerning her subjective complaints and her history, but they do not constitute competent medical evidence for the purposes of showing diagnosis or the existence of a nexus between claimed conditions and her military service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993). As previously noted, to establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there are required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease occurred in service. 38 C.F.R. § 3.303(d). The competent medical evidence of record does not establish a current diagnosis of any right or left foot pathology of a fungal nature. The competent medical evidence of record does not establish a current diagnosis of any fungal infection of either foot. There is no competent medical evidence of record to establish that the athlete's foot infection of the appellant's left foot in March 1978 was other than an acute and transitory condition that cleared up by the time of her separation examination one month later. The competent medical evidence of record does not establish a current diagnosis of any pathology related to residuals of an injury to the right side of the appellant's face or of any diagnosis involving the TMJ. The service medical records do not contain any diagnosis of any such claimed facial injury. Post-service, there is no competent clinical diagnosis of any claimed pathology. Thus, the preponderance of the medical evidence of record is against these claims. The absence of evidence is persuasive. In the absence of proof of a current disease or injury, service connection may not be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In November 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) became law. Among other things, this law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. With few exceptions, this law is applicable to all claims filed on or after the date of enactment, or filed before the date of enactment and not yet final as of that date. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) relating to the definition of new and material evidence and to 38 C.F.R. § 3.159 pertaining to VA assistance in the case of claims to reopen previously denied final claims (the second sentence of § 3.159(c) and § 3.159(c)(4)(iii)), which apply to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). In this case, VA's duties have been fulfilled as to the two claims for service connection. VA must notify the veteran of evidence and information necessary to substantiate her claims and inform her whether she or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was notified of the information necessary to substantiate her claims by means of the letters sent her by the RO in November 2001, January 2002, and March 2002, prior to the October 2002 rating, as well as the discussion in the Statement of the Case (SOC). These documents informed the appellant of what the evidence had to show to establish entitlement, what evidence was still needed and what VA's duty to assist was in obtaining evidence for her claims. She was also told that she needed to ensure that all pertinent evidence was submitted. The RO also sent the appellant a Statement of the Case (SOC), in May 2003, in which she was provided with the text of 38 C.F.R. § 3.159. Therefore, VA has no outstanding duty to inform. Although all notifications required by the VCAA were not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which she [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that any late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re- adjudicated ab initio to satisfy the requirements of the VCAA. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159(c), (d)). Here, VA outpatient medical records were obtained and associated with the claims file. Private medical records were associated with the claims file. The appellant did not provide any information to VA concerning any records that she wanted the RO to obtain for her concerning treatment for her feet or her face that were not obtained. The appellant has not reported that any other pertinent evidence regarding her feet or her face that might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). As for whether further action should have been undertaken by way of obtaining additional medical opinion on the question of service connection, the Board notes that such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2004). In this case, the veteran does not have current diagnosed disabilities, except by way of unsupported allegation. Consequently, given the standard of the new regulation, the Board finds that VA did not have a duty to assist that was unmet. Therefore, the Board finds that VA has completed its duties under the VCAA and all applicable law, regulations and VA procedural guidance. 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2005). ORDER Entitlement to service connection for a fungal disorder of the feet or for disability of the right side of the face due to injury is denied. REMAND A determination has been made that additional evidentiary development is necessary with respect to the remaining service connection claim. Accordingly, further appellate consideration will be deferred and this case is remanded for action as described below. In view of the account given by the appellant of events that happened in service and of the medical treatment that followed, the Board will ask for the RO to attempt to develop the record further as will be explained below. Regardless of whether additional records are obtained, the appellant should also be afforded a VA examination to determine if any diagnosed psychiatric disorder is traceable to her period of active military service. At her August 2005 Board hearing, the appellant submitted additional evidence, including a July 2005 report from a private doctor who rendered a diagnosis of PTSD. The appellant specifically stated that she did not waive consideration by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. This evidence has obviously not yet been considered by the agency of original jurisdiction. Because the additional medical evidence in question is neither duplicative of other evidence of record nor irrelevant, and because a Supplemental Statement of the Case (SSOC) pertaining to that evidence has not been issued, this evidence must be referred back to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Review of the evidence of record reveals that the appellant has been in receipt of VA Vocational Rehabilitation services. The appellant's VA Vocational Rehabilitation file should be obtained and all of the records concerning her VA vocational rehabilitation should be associated with the claims file. It also appears that not all of the appellant's VA treatment records have been associated with the claims file. No records dated before 1999 or after 2001 are of record. Any such VA treatment records should be identified, with assistance of the appellant as necessary, obtained, and associated with the claims file. The evidence of record indicates the appellant has been in receipt of Social Security Administration (SSA) disability benefits, beginning in approximately 1995. However, complete copies of the medical records upon which any disability award/denial was based, as well as any SSA decision and its associated List of Exhibits, have not been made part of the claims file. All of these records should be obtained and associated with the claims file. Review of the evidence of record indicates that records relating to treatment of the appellant's psychiatric disability are not of record. Specifically, the records from Cumberland County Mental Health Center are not of record. In addition, the appellant has recently indicated that she has been treated at the Dorothea Dix Hospital (November 2004), at Wake County Mental Health Services (February 2005) and the Goldsboro Psychiatric Clinic (July 2005). In regard to the appellant's psychiatric/PTSD claim based on non-combat stressors, the United States Court of Appeals for Veterans Claims (Court) has held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The VA Adjudication Manual M21-1 (M21-1) provides that the required "credible supporting evidence" of a non- combat stressor "may be obtained from" service records or "other sources." M21-1, part VI, formerly 7.46. With regard to specific claims based upon personal assault, M21-1, part III, 5.14(c), provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred. Included among the sources are statements from confidants, such as fellow service members, and records that indicate behavioral changes that occurred at the time of the incident that may indicate the occurrence of an in-service stressor. A Court case, Patton v. West, 12 Vet App 272 (1999), has highlighted the importance of the RO following the more particularized requirements delineated in the M21-1 for personal-assault PTSD claims. It is not clear that the RO has achieved the level of development required by the Court's holding in Patton. In particular, the appellant's complete service personnel files are not of record. No paternity determination or child support order is of record. In addition, the Board notes that no analysis of the partial service personnel records currently in evidence has been undertaken. In view of the account given by the veteran of the sexual assaults and harassment that purportedly happened in service and of the events that followed, the Board will ask for the RO to attempt to develop the record further as will be explained below. Regardless of whether an in-service stressor is verified, the appellant should also be afforded a VA examination to determine if PTSD or any other psychiatric disorder as noted in the claims file is traceable to her period of active military service. To ensure that VA has met its duty to assist in developing the facts pertinent to the claim remaining on appeal and to afford full procedural due process, the case is REMANDED for the following: 1. The RO should take appropriate steps to secure all of the appellant's service personnel records, including her Army, Army Reserve and Air Force ROTC performance evaluation reports, any reports pertaining to disciplinary actions and all paperwork relating to her duty assignments in the Army. These records should be associated with the claims file. If there are no records, documentation used in making that determination should be included in the claims file. 2. The RO should request from the appellant a comprehensive statement of potential alternative sources for supporting evidence regarding the alleged assaults and harassment during service. The RO inquiry should include possible sources listed in M21-1, part III, 5.14. The appellant should be advised that this information is necessary to obtain supportive evidence of the stressful event(s) and that she must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 3. Thereafter, the RO should request any supporting evidence from alternative sources identified by the appellant. A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. 4. The RO should obtain the appellant's VA Vocational Rehabilitation records (or legible copies thereof) and associate them with the claims file. 5. The RO should contact the Social Security Administration (SSA) to obtain copies of all of the medical records upon which any decision concerning the appellant's initial or continuing entitlement to benefits was based, as well as any SSA decision with its associated List of Exhibits. All of these records are to be associated with the claims file. 6. The RO should obtain the appellant's relevant medical treatment records from any VA facility identified by the appellant, to the extent not already on file. In particular, the RO should obtain the psychiatric and medical records dated from September 2001 to the present. 7. The RO should contact the appellant to determine the names, addresses, and dates of treatment by any physicians, hospitals or treatment centers (private or government) who provided her with relevant evaluation or treatment for any psychiatric disorder since 1978, not already provided. After obtaining the appropriate signed authorizations from the appellant, the RO should contact each physician, hospital, or treatment center specified by the appellant to obtain any and all medical or treatment records or reports relevant to the claim remaining on appeal. In particular, the records of treatment by Fayetteville Internal Medicine, Dorothea Dix Hospital, Cumberland County Mental Health Center, Wake County Mental Health Services and Goldsboro Psychiatric Clinic should be sought. All correspondence, as well as any medical or treatment records obtained, should be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 8. After completing the above development, the RO then should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the appellant was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 9. The RO should schedule the appellant, at a facility other than Fayetteville, for a comprehensive examination by a psychiatrist, if possible, to determine the nature and etiology of her current psychiatric disorder(s), to determine the historical extent and severity of her service-connected psychiatric disability and specifically to determine whether PTSD is present, and, if so, whether it is traceable to any in-service stressor(s). The claims file must be made available to and be reviewed by the examiner in conjunction with the requested study. The psychiatrist should conduct an examination with consideration of the criteria for PTSD. (The RO must specify for the examiner the stressor or stressors that it has determined are established by the record.) The examining psychiatrist, after examination of the appellant and review of her entire medical history, to include in-service and post-service medical reports, should provide an opinion as to the diagnosis and medical probabilities that each psychiatric disorder found is traceable to the veteran's period of military service. All necessary tests and studies should be conducted. The examiner should also reconcile all psychiatric diagnoses documented in the appellant's records and provide a current psychiatric diagnosis. The psychiatrist should also offer an opinion as to the onset date of the appellant's PTSD, if any. 10. Upon receipt of the VA examination report, the RO should conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, the RO should refer the report to the VA examiner for corrections or additions. 11. Thereafter, the RO should consider all of the evidence of record and re- adjudicate the appellant's claim of service connection for psychiatric disability. If any benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is hereby notified that it is the appellant's responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs