Citation Nr: 0810261 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-22 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable initial rating for residuals of a broken nose. 2. Entitlement to a compensable initial rating for residual scar, incision and drainage abscess, left buttocks, claimed as cyst on buttocks. 3. Entitlement to service connection for night vision loss. 4. Entitlement to service connection for transient confusion, claimed as blackouts. 5. Entitlement to service connection for heat exhaustion, claimed as heat stroke. 6. Entitlement to service connection for mild skin disorder, both thighs and toes of both feet. 7. Entitlement to service connection for post-traumatic stress disorder (PTSD). 8. Entitlement to service connection for depressive disorder. ATTORNEY FOR THE BOARD A. Willett, Associate Counsel INTRODUCTION The veteran had active service from January 1984 through January 1987, and from December 1987 through March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for night vision loss and entitlement to a compensable initial rating for residual scar, incision and drainage abscess, left buttocks, claimed as cyst on buttocks, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The record is without competent medical evidence showing 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 2. Competent medical evidence shows that the veteran was first treated for episodes of unawareness and confusion, now diagnosed as transient confusion, in service in 1988. 3. There is no clinical evidence of heat exhaustion at any time since the isolated incident in service in August 1988. 4. There is no clinical evidence of a skin disorder anywhere on the veteran's body at any time since the isolated incident in service in May 1990. 5. There is no statement in the record identifying specific traumatic events in service that can be corroborated to support a PTSD diagnosis for service connection. 6. There is no competent medical evidence in the record to show that the veteran's currently diagnosed depressive disorder was treated during service, or within one year of discharge, or that it is a post-service initial diagnosis is of a disease incurred in-service. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for residuals of a broken nose have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6502 (2007). 2. Transient confusion was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The criteria for service connection for heat exhaustion are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). 4. The criteria for service connection for mild skin disorder, both thighs and toes of both feet, are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). 5. The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a), 3.304(f), 4.125(a) (2007). 6. The criteria for service connection for depressive disorder are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Compensable Rating - Residuals of a Broken Nose The veteran appealed his initial noncompensable disability rating for residuals of a broken nose. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which sets forth separate rating codes for various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Evidence to be considered in the appeal of an initial rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). A disability must be considered in the context of the whole recorded history. The veteran is in receipt of a 0 percent disability evaluation for residuals of a broken nose. A 10 percent rating is available under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6502, for traumatic deviation of the nasal septum with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. In a November 2002 statement, the veteran indicated that he has annual sinus problems subsequent to his in-service broken nose. The veteran's January 2003 statement makes no suggestion of any current residuals of his in-service incident. The VA outpatient records have been reviewed thoroughly and there is no evidence of treatment for annual sinus problems at any time during the course of this appeal. The records report a history of a broken nose, but there is no evidence of current treatment of any kind for residuals. A May 2003 outpatient evaluation specifically notes that the veteran has no sinus problems. While the veteran reports some sinus problems, the clinical findings provide no evidence of such. Applying the relevant medical evidence in this case to the applicable rating criteria requiring 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, the Board finds that veteran's disability picture does not more closely approximate the criteria required under DC 6502 for a 10 percent disability rating. 38 C.F.R. § 4.7. The weight of the evidence is against the veteran's claim. A compensable disability evaluation for residuals of a broken nose is not warranted. Service Connection The veteran is seeking service connection for transient confusion (claimed as blackouts), heat exhaustion, mild skin disorder of both thighs and toes of both feet, post-traumatic stress disorder (PTSD), and depressive disorder. For service connection to be established, the claims folder must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." See Pond v. West, 12 Vet. App. 341, 346 (1999). In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Transient Confusion The veteran contends that he had blackout spells during active duty, which ultimately led to his dismissal from Airborne training in approximately January 1984. See January 2003 claim. The veteran's service personnel records were thoroughly reviewed and there is no evidence of such a dismissal from an airborne program. The service medical records do show treatment for blackout spells in 1988. An August 1988 treatment record shows that the veteran was seen for episodes in which he was unaware of the events around him and would stare for a few minutes and then become unaware of what was going on around him. At that time, the assessment was probable partial complex seizures. However, following an EEG within normal limits, an October 1988 note shows that a seizure disorder is not likely because the EEG was within normal limits and the history was "not consistent." Further, the October 1988 physician suggested that a "psychophysiologic response likely explains spells" and referred the veteran to the mental health clinic. There is no evidence in the service records that the veteran followed up with mental health in service. Following service, there is no evidence of treatment for black out episodes in the outpatient treatment record. The veteran was, nonetheless, afforded a VA neurological examination in April 2003. At that time, he described to the examiner episodes of staring and unresponsiveness since 1985, with minimal confusion and some disorientation after each event. He reported that these episodes continue now and his wife was present to corroborate the current nature of his blackout episodes. The examiner reviewed the claims folder and noted the normal neurological evaluation with EEG in service. The veteran reported to the examiner that he had several other EEG's and an MRI, which were all normal. The examiner, and the Board, could not find evidence of these examinations in the claims folder. The veteran also reported to the examiner that he had a "history of several episodes of head trauma with loss of consciousness while in the military." There is no evidence of such in the service medical records, aside from a notation of the history of two driving accidents in the October 1988 service medical record. Following his review of the claims folder and examination of the veteran, the VA examiner diagnosed "transient confusion" and stated that he did "not have any clear causative factor in the military other than his reported history of head trauma" which is unconfirmed. The examiner went on to say, however, that the onset of the veteran's currently diagnosed transient confusion did occur while he was in the military. While the evidence clearly shows that the physicians in service, as well as the VA examiner after service, recognize a current disability, but do not unequivocally understand its etiology. Yet, the service medical records show and the VA examiner confirms that the veteran's transient confusion did manifest in service. As such, service connection is warranted under 38 C.F.R. § 3.303(a). Heat Exhaustion The veteran believes he is entitled to service connection for heat exhaustion, because he was overheated during a physical training (PT) test during service. The service medical records show treatment in August 1988 following PT for light headedness. He was diagnosed with heat exhaustion at that time. A May 1990 hospital record reports the history of the August 1988 episode, but treats the veteran's leg complaints. Outside of these two records, heat exhaustion is not further mentioned in the service medical records. The veteran's outpatient treatment records were reviewed in their entirety and there is no evidence of treatment for heat exhaustion at any time since service. The record is entirely devoid of evidence of a current disability relating to the heat exhaustion suffered by the veteran in service. Given the foregoing, the benefit of the doubt rule is inapplicable. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, there is no evidence in the record to support the veteran's claim, thus, the preponderance of the evidence weighs against the claim. A diagnosis of heat exhaustion is not shown at any time since the isolated August 1988 episode during service. In the absence of any objective evidence of current episodes of heat exhaustion, entitlement to service connection is not warranted. The appeal is denied. Skin Disorder The veteran believes he is entitled to service connection for skin disorder on his thighs and toes, because he was treated in service for such. The service medical records show treatment for a mild skin disorder of the thigh and toes while the veteran was hospitalized in May 1990 for chronic leg pain. He was in the service for another ten months following this treatment, but the record is otherwise devoid of treatment for a skin disorder. The veteran's outpatient treatment records were reviewed in their entirety and there is no evidence of treatment for any skin disorder at any time since May 1990. The record is entirely devoid of evidence of a current skin disorder as to any part of the veteran's body, including the thigh and toes. In fact, the only outpatient treatment record to mention the skin is the May 2003 report specifically stating "no rash, no sores, no suspicious changes in preexisting moles, no scalp problems." There is essentially no evidence of a current skin disorder for which service connection can be granted. Given the foregoing, the benefit of the doubt rule is inapplicable. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Here, there is no evidence in the record to support the veteran's claim, thus, the preponderance of the evidence weighs against the claim. A diagnosis of a skin disorder is not shown at any time since the isolated May 1990 episode during service. In the absence of any objective evidence of current episodes of a skin disorder, entitlement to service connection is not warranted. The appeal is denied. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the requirements of DSM-IV (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed., 1994); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In this case, the clinical evidence shows a diagnosis of PTSD, with a description of symptoms consistent with the disease, such as sleeplessness, decreased appetite, flashbacks, aggression and hostility, and an inability to manage his self-control. See May 2003 report from Dr. Beaty. VA outpatient mental health treatment records show efforts toward anger management. See May 2003 outpatient treatment, in particular. The question becomes whether there are verifiable in-service stressors to support the PTSD diagnosis for service connection. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran 's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). Just because a physician or other health professional accepted appellant's description of his...experiences as credible and diagnosed appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for PTSD." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). However, the fact that a veteran, who had a noncombatant military occupational specialty, was stationed with a unit that was present while enemy attacks occurred would strongly suggest that he was, in fact, exposed to such attacks. Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time that veteran was stationed at the base). In other words, the veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). In this case, the service personnel records do not show and the veteran does not claim that he was engaged in combat with the enemy at any time during his active service. As such, he must provide a statement describing his alleged stressors and they must be corroborated by the evidence. Here, the veteran submitted an undated form in 2002 providing "Information in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD)." His reported stressor was "going from the border of South & North Korea to Panama and being a trained sniper in S. Korea on the border in which I almost killed a man. Then I almost killed a man in Panama." There is no further elaboration or description of an actual traumatic event in service. He essentially states that his training and "almost" killing were traumatic to him. The RO wrote the veteran a letter in December 2005 and again in April 2007 requesting details of a specific incident in service that could be used to corroborate the veteran's claimed stressors. The veteran did not respond to either letter, as is indicated in the June 2007 formal finding on a lack of information required to corroborate stressor(s) in connection to the PTSD claim. Because 38 C.F.R. § 3.304(f) requires evidence of a verifiable in-service stressor before service connection for PTSD can be granted, and the record is devoid of such evidence, service connection for PTSD cannot be granted. The claim must be denied. Depressive Disorder The veteran is also claiming that he is entitled to service connection for a depressive disorder. A complete review of his service medical records revealed no treatment for depression or symptoms of depression at any time during service. However, a psychoses may be presumed to have been incurred in service, if it manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, there is a post-service diagnosis of depressive disorder. See May 2003 outpatient treatment note. These are the first clinical signs of depression post-service. There is no evidence prior to May 2003 in the record to indicate that the veteran is being treated for depressive disorder. Because May 2003 is more than twelve years following the veteran's discharge from active duty, the presumptive service connection regulations, cited above, do not apply. Service connection would be warranted, however, if this post-service initial diagnosis was shown by the evidence to have incurred in service. 38 C.F.R. § 3.303(d). However, here, the medical records do show treatment for depressive symptoms, but the record is entirely devoid of a suggestion that these depressive symptoms are related to the veteran's active service. Because there is no evidence in the record showing treatment for depression during service, or within one year of discharge, or showing that the post-service initial diagnosis is of a disease incurred in-service, service connection is not warranted for depressive disorder. The veteran's claim must be denied. Duties to Notify and Assist VA has a duty to notify and assist the veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and 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 notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide; and must (4) ask the veteran to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the notice requirement does not apply to the veteran's challenge of the initial rating for residuals of a broken nose. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Also, because Fenderson v. West, 12 Vet. App. 119, 126 (1999) held that a claim for an initial disability rating is distinct from a claim for increased rating, the notice requirements of Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008) are not applicable to the claim. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify with regard to entitlement to a compensable initial rating for residuals of a broken nose has been satisfied. With regard to the service connection claims, the February 2003, September 2003, November 2003, December 2005, and April 2007 letters to the veteran satisfy the requirements of 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio, and Dingess. Any defect with respect to the timing of the notice requirement was harmless error. The veteran was furnished content-complying notice and proper subsequent VA process, thus curing any error in the timing. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the veteran in substantiating his claims under 38 C.F.R. § 3.159(c), (d) (2007). Here, the veteran's statements, his service medical records, and VA treatment records have been associated with the claims folder. The veteran requested, but then failed to appear for his Board hearing, so no current hearing transcript is of record. He has not at any time prior to or since the hearing date contacted VA with an explanation of circumstances causing him to miss his hearing or requested that the hearing be reschedule. Thus, this decision is based upon the evidence of record without the benefit of a hearing transcript. The veteran has been afforded VA vision and neurological examinations for his claims for service connection for blackout spells/transient confusion, and for night vision impairment. The reports are in the claims folder. The Board notes that no medical examination has been conducted or medical opinion obtained with respect to the veteran's claims for a compensable rating for residuals of a broken nose or for service connection for heat exhaustion, a skin disorder, PTSD or depression. However, the outpatient treatment records lend sufficient evidence to decide the appropriate rating for residuals of a broken nose. And, the evidence, which fails to establish verifiable PTSD stressors or treatment for depression during service and does not reflect competent evidence showing current heat exhaustion or skin disorders, such that a nexus opinions between service and the disorders at issue are not possible, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide these claims. See 38 C.F.R. § 3.159(c)(4). As service and post-service medical records provide no basis to grant this claim, the Board finds no basis for a VA examination or medical opinion to be obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the prerequisites of McLendon are not apparent in this case. The veteran has not notified VA of any additional available relevant records with regard to his claims. VA has done everything reasonably possible to assist the veteran. A remand for further development of these claims would serve no useful purpose. VA has satisfied its duty to assist the veteran and further development is not warranted. ORDER Entitlement to a compensable initial rating for residuals of a broken nose is denied. Entitlement to service connection for transient confusion, claimed as blackouts, is granted. Entitlement to service connection for heat exhaustion, claimed as heat stroke, is denied. Entitlement to service connection for mild skin disorder, both thighs and toes of both feet, is denied. Entitlement to service connection for PTSD is denied. Entitlement to service connection for depressive disorder is denied. REMAND The veteran is seeking a compensable initial rating for residual scar, incision and drainage abscess, left buttocks. His service medical records document the October 1986 incision and drainage of an abscess on the veteran's left buttock. Since then, and during the course of this appeal, there has been no examination of the area of the incision to determine severity of the scar left from that procedure. There has been no analysis of the nature of the scar itself or of whether it leaves the affected body part functionally impaired. This matter must be remanded so that the veteran can be afforded a VA examination of the service-connected scar. The veteran is also seeking service connection for night vision loss. The Board notes that the veteran was afforded a VA eye examination for this claim in April 2003. The veteran described his problems with vision at night, including photophobia and glare in the right eye. Physical examination confirmed "significant photophobia in the right eye, which was not preset in the left eye during the Slit-lamp examination." The examiner diagnosed subjective complaints of photophobia and glare in the right eye, more symptomatic at night particularly while driving with oncoming headlights. There was no nexus opinion in the examination report. The veteran claims that these symptoms began in approximately 1984 in service. See January 2003 claim. This matter must be remanded for an addendum from the April 2003 examiner or any other competent VA examiner. The addendum should include a nexus opinion with regard to the veteran's currently diagnosed photophobia and glare in the right eye, based upon a review of the record. Accordingly, the case is REMANDED for the following action: 1. Afford the veteran a VA skin examination, and/or any other relevant examination to determine the current severity of his service connected residual scar, incision and drainage abscess, left buttocks. The examiner should summarize the severity of the scar itself, as well as the functional impairment of the left buttock as a result. 2. Obtain an addendum to the April 2003 VA eye examination, which addresses the etiology of the veteran's right eye photophobia and glare. The claims folder should be provided to the examiner for complete review. The examiner should verify such a review in the examination report. If further examination and testing is warranted, the examiner should conduct any necessary tests and/or x-rays and assess the current nature of any right eye disability related to night vision. Once a diagnosis is made, the examiner should then provide an opinion regarding the etiology of the veteran's disability by addressing the following question: is it more likely than not (i.e., probability greater than 50 percent)), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the veteran's current disability was incurred in service? A complete rationale should be provided for any opinion expressed. 3. Readjudicate the veteran's claim. If the benefits sought on appeal remain denied, the veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2007). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs