Citation Nr: 0811614 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 02-15 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of a right wrist laceration. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from February 1990 to February 1993. He was born in May 1971. This appeal to the Board of Veterans' Appeals (Board) is from actions taken by the above Department of Veterans Affairs (VA) Regional Office (RO). In June 2006, the Board denied entitlement to increased evaluations for postoperative right meniscectomy and a dermatological disorder. The Board remanded the issues shown on the first page herein, as well as the issue of service connection for a gastrointestinal disorder to include gastroesophageal reflux disorder (GERD). The VARO subsequently granted service connection for GERD (and assigned a noncompensble rating), and that issue is no longer on appeal. The denial was confirmed on the other two issues, and they were returned to the Board. Service connection is also in effect for meniscectomy of the right knee, postoperative, for which a 30 percent rating is assigned and a separate 10 percent rating is assigned for osteoarthritis of the right knee; thrombophlebitis of the right leg, rated as 10 percent disabling; and cervical lymphadenopathy, postoperative scar; postoperative deflection of the nasal septum; tinea versicolor, laceration scar on the left side of the head; and burns on the left foot; each rated as noncompensably disabling. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND Because of the complexities involved, the crux of the remaining two issues was rather carefully delineated in the prior remand, and will be reiterated herein to emphasize those details. Right Wrist In substance, with regard to the right wrist issue, the Board noted that clinical evidence showed that he was seen in July 1998 for a laceration on his "left" hand, for which he was treated with sutures. He was again seen in May 1999 after an incident when he was dancing and his knee gave out. He reported that he had gone to St. Mary's for care after that fall. And, while his right knee was a problem then, it is unclear whether he cut his hand at that time. Since then, there have been two separate incidents in which the veteran reportedly hurt his right hand. One was in July 2000 when he reportedly was on a ladder in his kitchen changing a light bulb and his right knee gave-out, dumping him into a plate glass window. The other was reportedly in August 2000 when he was dancing and lost his balance, putting his hand through a plate glass window. The treatment reports (from Texas Tech University Health Science Center and University Medical Center) associated with that second incident indicated that he had been drinking beer at the time, but did not attribute the fall to his being intoxicated; in fact, only a singular notation is of record as to how much he had then imbibed. And the veteran has alleged that notwithstanding the beer-drinking, that did not cause him to fall, and his knee nonetheless still gave way on him. In any event, the right hand laceration required emergency room treatment and eventual surgical repair. The Board noted that the veteran indicated that his wife and/or others could confirm the circumstances of the fall(s), but evidence in that regard had not apparently yet been submitted; and that "The proof required for a grant of service connection for the wrist or hand residuals becomes more of a factual issue than a medical one". The Board further noted that while the veteran's statements alone are not particularly incredible, in order to determine whether the veteran's other service-connected disabilities including relating to his right lower extremity had anything to do with the incident(s), observations from others who saw them would be helpful to that end. To that end, there may be ambulance, emergency room or other records from the immediate care on the former incident as well as the second, which may shed light on the exact circumstances of the falls as well. (Emphasis added) Noting the problems involved in the case, the Board observed that the appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Moreover, any evidence he may have with regard to the etiology of the disorders claimed in issues herein should be submitted, including from care-givers, employers, etc.; and the RO should assist him in acquiring them as necessary. In particular, he was to be asked for comments by observers as to how he injured his right wrist or hand. Only after such clarification had been undertaken was the veteran to be given a VA examination. Since the Board's remand, further clarification has been issued by the Court with regard to lay observations. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet App. 492 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A review of the post-remand file indicates that no apparent attempt whatsoever was made to pursue that avenue of development, to obtain such statements and/or to assist the veteran in that regard. (And thus, on the subsequent VA examination, not unexpectedly, the examiner declined to opine based on conjecture, rendering it an unhelpful opinion as well). The Board agrees that further development is necessary in that regard in accordance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the veteran the right to compliance with the remand orders). Psychiatric Disorder In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In general, congenital or developmental defects, such as personality disorders, are not diseases or injuries as such within the meaning of applicable legislation, and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82- 90. However, the VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). See also VA VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). With regard to the veteran's claimed acquired psychiatric disorder, in the prior remand, the Board noted that the veteran had been treated at several facilities for anxiety and depression. Recent clinical notations have been to the effect that he had had multiple explosive episodes at work as a correctional officer at a local prison, and was required to take time off. At the time of the prior Board consideration, there was no medical opinion of record as to the duration or etiology of the disability, although the veteran was noted to be convinced that it was related to the stresses of his service-connected disabilities. Since them, a convoluted psychological assessment including a history was obtained, to the effect that his Axis I diagnosis was "depressive disorder, NOS; generalized anxiety disorder; pain disorder associated with both psychological factors and a general medical condition". Axis III cited arthritis and multiple right knee surgeries (all of which are presumably service-connected). Among other comments, the psychologist indicated that the veteran's preoccupation with knee pain was due partly to his personality, as shown by the MMPI survey. The psychologist opined, in sum, that his psychiatric problems were not due to service but that his personality structure rendered him overly concerned about his physical problems. This opinion is not responsive to the questions asked, and the opinion is not particularly productive in resolving the issue at hand. It is also noted that, pursuant to the prior Board remand, the veteran was to be asked to identify persons or medical opinions which might have associated his service-connected problems with his mental health issues. It is not shown that this development was pursued any further. Thus, in this issue as well, the Board finds that further development is necessary in that regard in accordance with the previous Board remand directives. See Stegall v. West, supra. On the other hand, in general, it must be noted that while VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, additional evidence must be obtained with regard the specificities of his wrist injuries, and he is virtually the only person who can provide the data or lead the investigators to the persons who have the information necessary to undertake that development. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood at 193; see also Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996), and Olson v. Principi, 3 Vet. App. 480, 483 (1992). He may not abdicate his responsibility for facilitating the evidence required for an equitable adjudication. Moreover, the veteran is advised that he has an obligation to cooperate fully with VA's efforts to obtain the medical records. 38 C.F.R. § 3.159(c)(1)(i). Veterans are "expected to cooperate in the efforts to adjudicate" their claims for benefits. Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). "Their failure to do so would subject them to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Id. Because the questions with regard to the specific circumstances of how the veteran hurt his wrist and the ill- defined causal impacts upon his mental health issues are so pivotal to this case, and mindful of the limitations imposed by the disabilities herein involved, the Board finds that it would be beneficial to make one further attempt to develop the evidence. Accordingly, the case is REMANDED for the following action: 1. The appellant 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). Specifically, the veteran should be asked to identify and, if possible, obtain corroborative and descriptive statements from individuals who can substantiate the presenting circumstances of any or all of his wrist injuries, e.g., family, friends, supervisors, fellow employees, bystanders, emergency room crews, private medical facilities, etc. The statements should include their observations as to the circumstances which resulted in right wrist injuries and lacerations, to include whether his service-connected problems, particularly his right lower extremity disabilities, seemed, from their perspective, to have caused, in any contributed to, or had any impact on those circumstances, e.g., caused him to fall, precluded his being unable to stop himself once falling, etc., in which case, this should be detailed by all affiants. The RO should assist him to the extent possible. All responsible avenues of development should be pursued, and the veteran should be encouraged to think about who may have been present for or shortly after (e.g., emergency crews on the scene) the injuries and obtain comments from these observers so he may be able to document the circumstances as required to positively resolve his claim. 2. The veteran should be scheduled for a psychiatric evaluation by a physician who has not previously examined him. All evidence should be made available for review. Written opinions should be provided for the following: (a) What is the correct diagnosis(es) of the veteran's psychiatric disabilities; (b) When did the veteran's psychiatric disability(ies) commence and by what is that determinable; (c) To what is/are the veteran's psychiatric disability(ies) attributable; (d) To what extent has/have the veteran's service-connected disabilities played any role in his psychiatric disabilities, regardless of the diagnosis(es). All opinions should be issued in the context of whether "it is at least as likely as not", which does not mean merely within the realm of medical possibility, but rather than the weight of medical evidence both for and against a conclusion is so evenly divided as it is as medically sound to find in favor of causation as it is to find against it. 3. The case should then be reviewed and if the decision remains unsatisfactory, a SSOC should be issued and the veteran and his representative should be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The veteran need do nothing further until so notified. 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). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).