Citation Nr: 0810800 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-10 465A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a hernia. 3. Entitlement to service connection for bilateral flatfeet. 4. Entitlement to service connection for bilateral leg disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran had honorable active duty from June 1983 to June 1, 1986. He also had service from June 2, 1986, to December 16, 1987, which was under other than honorable conditions. The veteran also had prior inactive service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the RO in Chicago, Illinois, which, in pertinent part, denied service connection for a psychiatric condition, a hernia, bilateral flatfeet and bilateral leg disabilities. During the pendency of the appeal, service connection for thoracolumbar strain was granted by rating decision dated in March 2005. The Board notes that this constitutes a complete grant of the benefit sought. The issue is not before the Board. The Board received evidence from VA medical providers, which addressed the severity of the veteran's spine disability. The spine disability is not before the Board. The Board is only deciding the issue of psychiatric disability and hernia. As such, the evidence is not relevant, and the file need not be returned to the RO for initial consideration. See 38 C.F.R. § 20.1304(c) (2007) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). The claims of service connection for bilateral flatfeet and bilateral leg disabilities are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDINGS OF FACT 1. The veteran's character of discharge for the period of June 2, 1986, to December 16, 1987, is a bar to VA compensation benefits for disability arising out of such service. 2. The service medical records do not reveal any psychiatric problems during the veteran's period of honorable service from June 1983 to June 1, 1986; a psychosis was not noted within one year of separation from his honorable service; the veteran does not have a current diagnosis of PTSD; and any other psychiatric disability has not been attributed to the veteran's first period of honorable service. 3. The veteran has no current diagnosis of a hernia. CONCLUSIONS OF LAW 1. A psychiatric disability, to include PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.12, 3.303, 3.304, 3.307, 3.309 (2007). 2. A hernia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.12, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant 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) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claims, letters dated in September 2002, June, July, October and December 2003 fully satisfied the duty to notify provisions for the first three elements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The VCAA notice provided to the veteran prior to adjudication failed to provide notice of the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA. See Pelegrini II, supra. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The 2002 and 2003 letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claims. See Pelegrini II, at 120-121. Accordingly, the Board concludes that the failure to provide VCAA compliant notice was harmless. The Board may proceed with consideration of the claims on the merits. See Sanders, supra. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The veteran was provided with an examination in January 2004 to determine whether he has PTSD. The veteran's allegations of incurrence fall within the period of dishonorable service from June 2, 1986, to December 1987 and there is no evidence of a psychiatric disability prior to June 2, 1986, or a psychosis within one year of June 1986. Thus, the Board finds that the veteran did not incur or aggravate a psychiatric disability during a period of honorable active service. No further examination is warranted as there is sufficient evidence to decide the claim. The Board concludes an examination is not needed on the hernia claim because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such 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 § 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 § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran 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 veteran's claim since it could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The veteran contends that he has a variety of disabilities as a result of service. For the reasons that follow, the Board concludes that service connection is not warranted. 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. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board must address the effect of the veteran's character of discharge on his claims. The U.S. Court of Appeals for Veterans Claims (Court) has held that a "service connection" claim, consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran had a period of inactive service before entering into active duty on June 1, 1983. The veteran completed his initial enlistment on June 1, 1986, and immediately reenlisted on June 2, 1986. The veteran's December 16, 1987, discharge from his second period of service was under other than honorable conditions. In an October 2003 administrative decision, the RO essentially determined that the veteran's character of discharge for the period of June 2, 1986, to December 16, 1987, was a bar to VA compensation benefits due to willful and persistent misconduct. It was also noted that there was no indication that he could not distinguish between right or wrong (i.e. that he was insane). The veteran did not appeal that determination and it is now final. See 38 U.S.C.A. § 7104. As a result, the veteran does not have "veteran status" for that period and cannot receive direct service connection for any disabilities incurred or aggravated during that period. See 38 C.F.R. §§ 3.12, 3.303, 3.304 (2007). The veteran may, however, receive service connection under presumptive provisions related to disabilities first manifested in that period. See, e.g., 38 C.F.R. §§ 3.307, 3.309 (2007). The Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). a. Psychiatric Disabilities to include PTSD The veteran contends that he has PTSD, or another acquired psychiatric disorder as a result of service. He has specifically alleged he endured assaults resulting in his psychiatric disability while stationed in the Demilitarized Zone in South Korea. The veteran's service medical records from his first period of honorable service include no evidence of a psychiatric disability, and he has alleged none. Additionally, there is no competent evidence linking any current psychiatric disability (e.g. depression) with his first period of service. As for his second period of service, personnel records show that the veteran arrived in Korea on June 24, 1987. Any disability resulting from events occurring in Korea cannot be service-connected on a direct basis given his other than honorable discharge. See 38 C.F.R. §§ 3.12, 3.303, supra. It is also notable that a recent VA examination revealed that he did not have PTSD. The Board has considered the application of the service connection presumptions. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no evidence to show a psychosis during the first year following June 1, 1986. The veteran's arrival in Korea is after the expiration of the one year period; the veteran cannot benefit from the presumption for any events occurring in Korea. Furthermore, the Board notes that the veteran's primary complaint, PTSD, is not a psychosis under VA regulations. See 38 C.F.R. § 3.384 (2007). The Board concludes that the presumptions are not for application. See 38 C.F.R. §§ 3.307, 3.309. As such, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a psychiatric disability to include PTSD. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b. Hernia The veteran contends that he is entitled to service connection for a hernia. In his August 2002 formal claim, he listed a hernia at Fort Hood in 1985. In his April 2005 Form 9, the veteran stated that his hernia rendered him unable to have children. The Board has reviewed the veteran's claims file. The veteran has never been diagnosed with a hernia. There is no record in either his service medical records, VA treatment records, or private treatment records that he had a hernia. The veteran did receive treatment during service for sexually transmitted diseases and no hernias were noted in the course of physical examination. The veteran is not competent to diagnose or report a hernia on his own. See Rucker, supra. There is, in short, no competent evidence in favor of this claim. The Board concludes that the claim must fail. See Hickson, supra. ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD is denied. Entitlement to service connection for a hernia is denied. REMAND Unfortunately, the claim for service connection for bilateral flatfeet and bilateral leg disabilities must be remanded. The Board observes that the veteran has been receiving treatment from VA on an ongoing basis. A June 2007 treatment note indicates that the veteran was evaluated for complaints of flatfeet in October 2006 by the Podiatry service at the Jesse Brown VAMC. The October 2006 Podiatry report is not itself of record. The Board is obligated to obtain this record. See 38 C.F.R. § 3.159. The last time the RO conducted a search to obtain records related to the feet was in May 2006. The file should be updated beginning in May 2006. Furthermore, the 2007 treatment record was received after the final consideration of the claim. The Board cannot consider the evidence in the first instance. See 38 C.F.R. § 20.1304, supra. The veteran underwent a May 2007 VA examination for his back disability, which also evaluated his legs. The Board cannot consider this evidence in the first instance either. Id. The Board must remand to allow the RO to complete the record, give the veteran an opportunity to respond and readjudicate the claims. Accordingly, the case is REMANDED for the following action: 1. Obtain the veteran's VA medical records for treatment concerning the feet and legs from May 2006 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Then, after ensuring the VA examination report is complete and that any actions needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), have been completed, the RO should readjudicate the flatfeet and leg claims on the merits. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or 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). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs