Citation Nr: 0809683 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-10 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD. 3. Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus. 4. Entitlement to a rating in excess of 10 percent for chondromalacia, left patella. 5. Entitlement to a temporary total (convalescent) rating under 38 C.F.R. § 4.30 following plantar fibroma surgery in September 2002. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who had active service from September 1981 to January 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A Travel Board hearing was held before the undersigned in December 2007; a transcript of the hearing is of record. A September 2005 rating decision denied service connection for a right knee disorder. In August 2006 the veteran filed a notice of disagreement with that determination, and in November 2006 the RO issued a statement of the case (SOC) in the matter. The veteran did not timely perfect his appeal as to this issue, and it is not before the Board. The issues of entitlement to service connection for PTSD and to an increased rating for a left knee disorder are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. A psychiatric disorder was not manifested during the veteran's active service; a psychosis was not manifested in the first postservice year; and a psychiatric disorder other than PTSD is not shown to be related to the veteran's service or to any event therein. 2. An unappealed March 1990 rating decision denied service connection for diabetes mellitus based essentially on findings it was not manifested during (and was unrelated to) service or within the first postservice year. 3. Evidence received since the March 1990 rating decision is not competent evidence that suggests that the veteran's diabetes mellitus might be related to his service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for diabetes mellitus; and does not raise a reasonable possibility of substantiating such claim. 4. The veteran's plantar fibroma surgery in September 2002 was not for a service-connected disability. CONCLUSIONS OF LAW 1. Service connection for a variously diagnosed psychiatric disorder other than PTSD is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384 (2007). 2. Evidence received since the March 1990 rating decision is not new and material, and the claim of service connection for diabetes mellitus may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a)(2007). 3. The criteria seeking a temporary total (convalescent) rating following the veteran's September 2002 plantar fibroma surgery lacks legal merit. 38 C.F.R. § 4.30 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). Letters in June 2002 and December 2002 (prior to the decision on appeal) informed the veteran of the evidence and information necessary to substantiate the claims of service connection for a psychiatric disability (claimed as depression) and to reopen a claim of service connection for diabetes mellitus, the information required of him to enable VA to obtain evidence in support of the claims, the assistance that VA would provide to obtain evidence and information in support of the claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. A March 2006 letter provided additional notice, to include regarding disability ratings and effective dates of awards. See Dingess, supra. As this decision does not address any effective date or disability rating matters, the veteran is not prejudiced by any timing defect as to this notice. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in a claim to reopen a previously finally denied claim, VA, by way of a specific notice letter, must notify the claimant of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying claim; and (3) is specifically required to substantiate the element or elements needed that were found insufficient in the prior final denial on the merits. Here, the December 2002 letter and a February 2004 SOC provided notice essentially compliant with Kent. The veteran had ample opportunity to respond. An August 2007 supplemental SOC (SSOC) readjudicated the matter. Regarding VA's duty to assist, the record includes the veteran's service medical records (SMRs). VA has obtained all pertinent/identified records that could be obtained, and all evidence constructively of record has been secured. The veteran has been provided with psychiatric assessments. VA's duty to assist is met with respect to these issues. It is not prejudicial for the Board to proceed with appellate review. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Finally, with respect to the claim for a temporary total rating under 38 C.F.R. § 4.30, the Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court recognized that enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). The veteran has been notified of the controlling law and regulations, and of the basis for the denial of his claim (See March 2005 SSOC). He has had ample opportunity to respond. II. Factual Background The veteran's SMRs do not show any treatment or diagnosis of a psychiatric disability. A report by a private psychologist dated in January 2002 shows a diagnosis of major depressive disorder, recurrent, with psychotic features. The veteran was hospitalized in August 2002 with a diagnosis of depression related to presumed bipolar affective disorder. A July 2003 VA psychiatric evaluation found bipolar disorder. VA outpatient records dated in 2006 and 2007 show diagnoses of schizoaffective disorder and bipolar disorder. A March 1990 rating decision denied service connection for diabetes mellitus based essentially on findings that it was not shown in service or manifested during the first postservice year, and was unrelated to the veteran's service. He did not appeal that determination. Evidence of record at the time of the March 1990 rating decision included the veteran's SMRs which note a family history of diabetes, and his complaints of frequent urination, thirst, and wanting candy. However, glucose testing was negative. A January 1990 VA hospitalization report noted the veteran had been well until two to three months prior, when he began losing weight rapidly; new onset noninsulin-dependent diabetes mellitus and diabetic nephropathy were diagnosed. The current claim to reopen was received in January 2002. The relevant evidence received since the March 1990 rating decision includes a May 1991 VA hospitalization report noting a twelve months' duration of diabetes mellitus. It also includes a January 2002 statement from a private psychologist noting the veteran's reported history of problems with weight in service. The psychologist stated that "after being released from the U.S. Army, he went immediately to the VA where they diagnosed him as having diabetes. It is fairly obvious that this is a service-related disorder, and he needs to be rated for this issue." The record also includes recent VA treatment records noting the ongoing diagnosis of diabetes mellitus. In September 2002 the veteran underwent surgery for treatment of a left foot plantar fibroma. III. Legal Criteria and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where a veteran served 90 days or more of continuous, active military service and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such psychosis shall be presumed to have been incurred in service even though there is no evidence of it during the period of service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. During the pendency of this appeal 38 C.F.R. § 3.384 was added to define a "psychosis" to include brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder not otherwise specified; schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. Id. (effective August 28, 2006). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Psychiatric Disorder (other than PTSD)(claimed as depression) The veteran's psychiatric disability (other than PTSD), diagnosed as bipolar disorder, schizoaffective disorder, and major depressive disorder, was not manifested in service, and a psychosis was not manifested in the first postservice year. Consequently, service connection for such disability on the basis that it became manifest in service (and persisted), or on a presumptive basis (for a psychosis as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. Service connection for a psychiatric disability other than PTSD may still be established if competent evidence shows that such disability is related to the veteran's active service. However, there is no competent evidence that relates the veteran's bipolar disorder, schizoaffective disorder, or major depressive disorder to his service. The medical evidence of record shows diagnoses of psychiatric disability more than a decade after separation from service; the medical reports do not associate the veteran's current psychiatric disability with his active service. The Board has considered the veteran's stated opinions that his psychiatric disability is related to his service. However, because he is a layperson, they are not competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The preponderance of evidence is against this claim. Accordingly, it must be denied. Diabetes Mellitus As noted above, service connection for diabetes mellitus was denied by a March 1990 rating decision. The veteran was properly notified of that decision and of his appellate rights; he did not appeal it. Accordingly, it is final. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." [38 C.F.R. § 3.156(a), which defines "new and material evidence", was revised, effective August 29, 2001. The instant claim to reopen was filed after that date (in January 2002), and the revised definition applies.] "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Recent VA medical reports are "new" in that they were not before the RO at the time of the March 1990 rating decision. However, as they do not tend to relate the veteran's current diabetes mellitus to service, they do not bear specifically on the matter under consideration, and are not material. The veteran's statements attributing his diabetes mellitus to events in service merely repeat his contentions of record at the time of the March 1990 rating decision, and are not new evidence. The May 1991 VA treatment record is new, but its notation of onset of diabetes mellitus twelve months earlier does not raise a reasonable possibility of substantiating the veteran's claim (as it does not place onset during service or during the chronic disease presumptive period, or otherwise relate the diabetes to service). The January 2002 psychologist's statement was not by a physician, and was not based on a review of the record, but was based on the veteran's inaccurate report of a history of having diabetes diagnosed "immediately" after service rather than more than two years later. Thus, the statement is not competent evidence that relates materially to an unestablished fact necessary to substantiate a claim of service connection for diabetes mellitus, and does not raise a reasonable possibility of substantiating such claim. In sum, no item of evidence received since the March 1990 rating decision relates materially to an unestablished fact necessary to substantiate a claim of service connection for diabetes mellitus or raises a reasonable possibility of substantiating the claim. Accordingly, the additional evidence received since March 1990 is not "new and material evidence," and the claim of service connection for diabetes mellitus may not be reopened. Convalescent Rating A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 (in part, as pertinent here) if surgery or treatment for a service-connected [emphasis added] disability required convalescence for at least one month. See 38 C.F.R. § 4.30(a). The record shows that in September 2002 the veteran underwent surgery for treatment of a left foot plantar fibroma. Such left foot disability is not service connected. (Service connection for left foot plantar fibroma was denied by an unappealed December 2004 rating decision.) As the surgical procedure in September 2002 was not for treatment of a service-connected disability, a threshold legal requirement for establishing entitlement to benefits under 38 C.F.R. § 4.30 is not met. Consequently, the claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Service connection for a psychiatric disorder other than PTSD (claimed as depression) is denied. The appeal to reopen a claim of service connection for diabetes mellitus is denied. A temporary total (convalescent) rating under 38 C.F.R. § 4.30 following plantar fibroma surgery in September 2002 is denied. REMAND The veteran contends that he has PTSD as a result of events in service. PTSD has been diagnosed based on various stressors. The RO has attempted to verify certain of his claimed stressors; most could not be corroborated. Regarding the veteran's allegation that he was a target of gunfire while on guard duty in Sinai, Egypt in 1984, it appears that the RO attempted to verify this event but the attempt was unsuccessful as they were unable to specify a 60-day range for when the event occurred. Subsequently, at a hearing before the RO in May 2004, the veteran specified that he believed the incident occurred in March 1984. It appears that the RO initiated an attempt to verify the incident based on this information; the record does not reflect the outcome of this attempt. Furthermore, if this alleged stressor event is corroborated, a psychiatric evaluation would be necessary to determine if the veteran has PTSD based on such stressor. The veteran's service connected left knee disability was most recently examined by VA for compensation purposes about 3 1/2 years ago, in September 2004. Subsequent outpatient treatment records note positive McMurray's test, but not laxity or instability of the knee joint. In view of the positive McMurray's and the veteran's report of worsening of knee disability since the last VA examination, a contemporaneous examination is indicated. Finally, in a recent decision the Court outlined the type of notice that is mandated in claims for increase. See Vazquez- Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). The record does not reflect that the veteran received Vazquez-Flores compliant notice with respect to his claim for an increased rating for his left knee disability. As the case is being remanded anyway, the RO will have opportunity to correct such notice deficiency. Accordingly, the case is REMANDED for the following action: 1. With respect to his claim for an increased rating for left knee disability, the RO should provide the veteran notice that is fully compliant with the mandates of the Court in Vazquez-Flores, supra. He should have opportunity to respond/supplement the record. 2. The RO should then arrange for the veteran to be afforded a VA orthopedic examination to determine the current severity of his service connected left knee disability. The examiner must review the veteran's claims folder in conjunction with the examination. All clinical findings should be reported in detail. The findings must include range of motion studies (to include any limitations due to pain) as well as specific findings as to whether there is subluxation or instability and, if so, the degree of such. The examiner should explain the rationale for any opinions given. 3. The RO should also arrange for verification of the gunfire attack in Sinai, Egypt in approximately March 1984 reported by the veteran. He must assist the RO in these matters by providing any further identifying information necessary. The outcome of the attempted verification must be documented in the claims folder. 4. The RO should then make a specific determination as to what stressor event(s) in service is/are corroborated. If, and only if, an alleged stressor event in service is deemed corroborated, the RO should arrange for the veteran to be examined by a psychiatrist to determine whether he has PTSD related to such stressor event. The RO should advise the examiner what, if any, stressor event(s) in service is(are) corroborated. The examiner must review the veteran's complete claims file in conjunction with the examination. Upon review of the claims file and examination of the veteran, the examiner should opine whether he, at least as likely as not, has PTSD related to the corroborated stressor event in service. The examiner must explain the rationale for all opinions given. 5. The RO should then readjudicate these claims. If any remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs