Citation Nr: 0810745 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-07 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been submitted to warrant reopening a claim of entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD. 3. Entitlement to service connection for a bilateral knee disorder. 4. Entitlement to service connection for a back disorder, to include as secondary to a bilateral knee disorder. 5. Entitlement to service connection for a neck disorder, to include as secondary to a bilateral knee disorder. 6. Entitlement to service connection for peripheral neuropathy of the bilateral legs, to include as secondary to a bilateral knee disorder. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S.M. Cieplak, Counsel INTRODUCTION The veteran served on active duty with the U.S. Air Force from December 1968 to December 1972, and from June 10, 1981 to October 23, 1981, from which he received a hardship discharge. These matters come to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied the benefits sought on appeal. In February 2004, the veteran presented testimony before a representative of the RO. In November 2005, the veteran also presented testimony before the undersigned Veterans Law Judge in a video conference from Philadelphia, Pennsylvania. Transcripts of those hearings are of record. In June 2005 and November 2006, the Board remanded this matter to afford due process and for other development. Following its most recent completion of the Board's requested actions, the RO continued the denial of the veteran's claims (as reflected in a September 2007 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. When previously before the Board in November 2006, the claim for a mental disorder was regarded as a consolidated issue for a psychiatric disorder to include PTSD. However, the Board additionally observes that a claim for service connection for PTSD is separate and distinct from a claim for service connection for a different mental disorder. See generally Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996) [holding that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be considered the same claim]. Under the circumstances and because the claims warrant separate treatment, the Board has restyled those claims into separate issues as set forth on the first page of this decision. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. Although entitlement to service connection for PTSD was denied by an unappealed rating determination from September 1983, additional service treatment records, which by definition constitute new and material evidence, have since been obtained and associated with the claims file. 3. The claims file does not include a current medical diagnosis of a psychiatric disorder to include PTSD. 4. The claims file does not include a current medical diagnosis of a bilateral knee disorder. 5. The claims file does not include medical evidence of a nexus between a degenerative disc disease and degenerative joint disease of the cervical spine and the veteran's military service. 6. The claims file does not include a current medical diagnosis of back disorder. 7. The claims file does not include medical evidence of a nexus between peripheral neuropathy and the veteran's military service. 8. Service connection is not established for any disorders. CONCLUSIONS OF LAW 1. New and material evidence was received and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Service connection for an acquired psychiatric disorder to include PTSD is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 3. A bilateral knee disorder was not incurred or aggravated by active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 4. A back disorder was not incurred or aggravated by active military service or a service connected disorder, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 5. Degenerative disc disease and degenerative joint disease of the cervical spine was not incurred or aggravated by active military service, nor may incurrence of degenerative joint disease be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 6. Service connection for peripheral neuropathy is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 7. The veteran does not have service-connected disabilities that render him unemployable. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in letters from the RO dated in October 2002 and December 2006. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). With respect to the PTSD claim, the Court recently found in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) that, in order to fully comply with the VCAA notice requirement for new and material evidence claims, the veteran must be advised as to the reasons the original claim was denied and what kinds of evidence would be required to re-open his claim. Regardless as to whether the veteran may or may not have been accorded complete VCAA notice as contemplated in Kent, there is no prejudice to the veteran because the claim is being reopened by the Board. The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. The appellant has not identified any additional evidence that could be obtained to substantiate the claim. Clearly, from submissions by and on behalf of the veteran, he is fully conversant with the legal requirements in this case. Thus, the content of these letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. New and Material Evidence As noted above, entitlement to service connection for PTSD was denied in an unappealed rating decision from September 1983 because a diagnosis of PTSD was not then supported by the record. The petition to reopen was filed in April 2002. The Board, in the first instance, must rule on the matter of reopening a claim. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). VA law for claims received after August 29, 2001, provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board is mindful that the RO determined that new and material evidence had been submitted; following that determination, the RO denied the claim because a mental disorder, to include PTSD, was not currently demonstrated. As a result of the November 2006 Board remand, additional service treatment records were recently obtained. In this vein, additional service treatment records are, by definition, considered new and material evidence. 38 C.F.R. § 3.156 (c). As new and material evidence has been received, the claims of service connection for PTSD is reopened. 38 U.S.C.A. § 5108. Service Connection - Law and Regulations Service connection may be granted for a disorder that was incurred or aggravated while on active duty. 38 U.S.C.A. §§ 1110, 1131. Disability which is proximately due to or the result of a service-connected disease or injury may also be service connected. 38 C.F.R. § 3.310. "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 service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Additionally, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Each disorder for which a veteran seeks service connection must be considered on the basis of evidence, including that shown by his service records, his medical records, and pertinent medical and lay evidence. Id. In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) 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). Even though the veteran is not seeking service connection on a direct basis for all his claimed disorders, when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Board also observes that the RO considered the claims on a direct basis as well as secondary theories. Service Connection - Factual Background Service treatment records from his first period of service are negative for complaints or findings as to any of the claimed disorders. His separation examination of November 1972 was silent as to complaints as to any of the claimed disorders and the clinical evaluation reported pertinent systems as entirely normal. Periodic medical examinations associated with the veteran's reserve service conducted in November 1973 and October 1979 were negative as to any complaints pertaining to those claimed disorders and clinical findings of associated systems were reported as entirely normal. Entitlement to service connection for PTSD was previously denied in an unappealed rating determination from September 1983. The service treatment records from the veteran's second period of service that obtained after the case was remanded by the Board in November 2006 revealed that the veteran reported severe family problems during his fourth week of advanced infantry training and he requested a hardship discharge. He was assessed on September 8, 1981 with family problems, adjustment disorder with depressed mood. He was returned to duty and regarded as "[p]sychiatrially clear" and the case was closed. Service treatment records for that latter period of service negative as to any complaints or findings pertaining to claimed orthopedic and/or neurological disorders. The veteran declined a separation physical examination. The veteran was afforded a VA Agent Orange Examination in June 1983, which was negative for complaints or findings pertaining to claimed mental, orthopedic and/or neurological disorders. The veteran has a history of extensive alcohol abuse lasting for decades. See e.g. VA examination report of August 1996, Social Security (SSA) Mental disorders examination of March 21, 1998, as well as assorted more current treatment records. The veteran has been awarded nonservice-connected (NSC) pension. Peripheral neuropathy of unclear etiology of the lower extremities was diagnosed in a VA examination of March 1998 and was the only disorder supporting his NSC pension award. The March 21, 1998 SSA examination noted the veteran's chief complaint was a nervous disorder in his legs and apparently peripheral neuropathy secondary to alcoholism; alcohol dependence was diagnosed as well as peripheral neuropathy in both legs. Degenerative joint disease and degenerative disc disease of the cervical spine were first appreciated during a September 1999 hospitalization for alcohol treatment. The present appeal derives from a claim filed in April 2002. Diffuse degenerative joint disease of the cervical spine was identified on October 2002 VA X-rays. Homelessness/adjustment disorder/ETOH abuse were assessed in VA outpatient treatment records dated in June 1998. In April 1999, the veteran was refused admission to a VA PTSD program because the evaluating psychologist could not corroborate a diagnosis of PTSD. A September 17, 2000 psychosocial survey documented the veteran's statement that he was not bothered by psychological or emotional problems, and had not received hospitalization or treatment for mental disorders. The examiner considered the responses not to be distorted, as the veteran understood the questions. A March 27, 2001 assessment did not produce complaints or findings of any psychiatric disorder whatsoever. The veteran has had several mental health assessments over the years that have failed to support a diagnosis of PTSD. See e.g. May 3, 1999 and February 18, 2000 assessments by VA Director of PTSD Program which respectively failed to support a diagnosis of PTSD. A September 22, 2006 VA treatment record assesses peripheral neuropathy secondary to alcohol. Analysis The record does not show, nor does the veteran contend, that he or the authors of the other statements made on his behalf has specialized education, training, or experience that would qualify them to provide an opinion as to whether his claimed disorders were caused or aggravated by military service. It is now well established that where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. See, Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against a claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board also finds it significant that the veteran did not claim he experienced orthopedic disorders as part of his original claim of service connection in 1983. In fact, he did not initiate this claim until 2002, more than 20 years after service. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Mental Disorder, to include PTSD As noted above, a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Even where there is evidence of an injury or disease in service, there must be a present disability resulting from that disease or injury. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In this case, the claimed PTSD disorder was not shown in service, and the preponderance of the evidence is against the existence of the claimed disorder. Accordingly, in the absence of a diagnosed mental disorder, such as PTSD, this claim must be denied. See Rabideau, supra; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The Board also observes that the veteran was assessed with an episode of adjustment disorder associated with severe family problems during his brief second period of service. He was assessed on September 8, 1981 with family problems, adjustment disorder with depressed mood and was returned to duty and was specifically regarded as "[p]sychiatrially clear" and the case was closed. An adjustment disorder episode again manifested approximately a decade ago in 1998 and appears to have been associated with the veteran's homelessness and alcohol abuse. Apart from consistent alcohol abuse, more current treatment records fail to assess/diagnose any mental disorder whatsoever. See e.g. outpatient treatment records from September 18, 2006. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In the absence of a current diagnosis of PTSD or any psychiatric disorder, the claims must be denied. Knee and Back Disorder Although the veteran has averred that he has received private treatment over the years for his claimed orthopedic disorders, efforts to obtain private treatment records have been unsuccessful. The veteran was informed as to lack of success in obtaining said treatment records in the Statement of the Case of January 2005. He was also informed in the VCAA correspondence issued in December 2006 as to his ultimate responsibility in providing such records. He did not do so. Service treatment records are silent as to complaints, findings, treatment or diagnoses relating to the veteran's knees and/or back. Moreover, VA and private treatment records since separation are silent as to any knee or back disorders. Because in the absence of proof of a present disability there can be no valid claim for service connection, these claims must be denied. See Brammer, supra. Cervical Spine (Neck) Disorder The first evidence of a cervical disorder (degenerative disc disease and degenerative joint disease ) was shown in September 1999, many years after the veteran's service. Service connection for degenerative joint disease on a presumptive basis is not warranted since the claimed condition was not shown within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. The record evidence is considered more probative and weighs heavily against the claims. Silence in service treatment records and the normal findings on the veteran's separation examination constitute negative evidence. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The service examinations as well as post service examinations associated with the veteran's reserve service are entirely silent as to complaints, findings, treatment or diagnoses relating to any cervical disorder. See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered as a factor in determining a service connection claim). In addition, no competent medical authority has associated the veteran's cervical disorders to service or to a service connected disorder. Under the circumstances, the preponderance of the evidence is against the claim and, thus, entitlement to service connection is not warranted. Peripheral Neuropathy Regarding this disorder, 38 U.S.C.A. § 1116 (West 2002) provides that a veteran who served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange) if he has one of the listed Agent Orange presumptive diseases. The veteran's DD-214 reflects service in Vietnam during the pertinent period. Acute or subacute peripheral neuropathy shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, except that acute and subacute peripheral neuropathy must become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). In this case the medical evidence does not demonstrate the veteran's peripheral neuropathy manifested to a degree of 10 percent or more within a year after herbicide exposure. Thus, entitlement to service connection on a presumptive basis is not warranted. Moreover, no competent authority has associated the claimed peripheral neuropathy to military service. In fact, the March 21, 1998 SSA examination as well as the September 22, 2006 VA examination report associate peripheral neuropathy to the veteran's alcohol abuse. Under the circumstance, and in the absence of competent medical authority associating the claimed disorder to service, service connection is not warranted. TDIU Under 38 C.F.R. § 4.16(a), TDIU may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation as a result of service- connected disability. In this case, entitlement to service connection has not been established for any disorders. Thus, a total rating on account of service connected disabilities is not warranted. Conclusion The Board observes that on his substantive appeal dated in February 2005, the veteran acknowledged that his service treatment records do not contain documentation as to his claimed disorders because he "was not diagnosed until after [leaving] the military." VA examinations were not provided as to the claimed orthopedic disorders or for peripheral neuropathy. The evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with section 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to section 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under section 5103A to provide a claimant with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the appellant's claims since it could not provide evidence of a past event. ORDER As new and material evidence has been received, the claim of service connection for PTSD is reopened, and, to that extent, the appeal is granted. Service connection for PTSD is denied. Service connection for a psychiatric disorder other than PTSD is denied. Service connection for a bilateral knee disorder is denied. Service connection for a back disorder is denied. Service connection for a cervical spine disorder is denied. Service connection for peripheral neuropathy is denied. A total rating for compensation purposes based on individual unemployability due to the veteran's service-connected disabilities is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs