Citation Nr: 0811630 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 03-25 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for glaucoma. 3. Entitlement to service connection for anemia. 4. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from July 1966 to July 1968 and from September 1977 to June 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that in pertinent part, denied entitlement to service connection for PTSD, glaucoma, and anemia; and, denied entitlement to SMC based on the need for aid and attendance or housebound status. The issues of entitlement to service connection for anemia and entitlement to SMC based on the need for regular aid and attendance 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 veteran did not engage in combat with an enemy of the United States of America. 2. The veteran's claimed in-service stressors have not been verified by official military records, and there is no credible supporting evidence of record that the appellant's claimed in-service stressors occurred to support a diagnosis of PTSD. 4. Glaucoma was first shown many years after discharge from service and is not shown by the medical evidence to be related to any in-service disease or injury. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). 2. Glaucoma was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in May and June 2002. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. While the notification did not advise the veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection are denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, the notices provided to the veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claims. The veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). VA has obtained service medical records, assisted the veteran in obtaining evidence, and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. The veteran was not afforded VA examinations in conjunction with his claims of service connection for PTSD and glaucoma. Although the veteran was not afforded these VA examinations to determine the likely etiology of the PTSD and/or glaucoma, no such examination is necessary in this case because there is no evidence of in-service PTSD or glaucoma, and the record does not reflect the presence of a psychiatric disability or glaucoma until many years after discharge from service. Moreover, the PTSD claim is denied because of a lack of a corroborated stressor, and no VA examination or opinion obtained would change the outcome of that claim. In disability compensation (service connection) claims, VA must provide a 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. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Service Connection The veteran seeks service connection for PTSD and glaucoma. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as psychosis, for example, to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD The criteria necessary to establish service connection for PTSD differ from that necessary to establish service connection for other psychiatric disabilities. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in- service stressors as set forth below: 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). Where VA determines that the veteran did not engage in combat, the veteran's lay testimony, by itself, will not be sufficient to establish the alleged stressor. Instead, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran's lay testimony concerning the noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). In this regard, VA "is not required to accept doctors' opinions that are based upon the appellant's recitation of medical history." Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). The veteran's DD Form 214 and other personnel records in the claims file do not show that the veteran engaged in combat with the enemy. The veteran did not receive a military award that denotes participation in combat, and the veteran was not injured in combat. Similarly, the veteran's service medical records are negative for complaints, findings or diagnosis of PTSD. The veteran asserted that his PTSD began after service in Vietnam in 1968; however, the veteran's Reports of Medical History from the 1980's and 1990's do not show that the veteran complained of any symptomatology associated with PTSD such as insomnia, depression, excessive worry, loss of memory, or nervous trouble of any sort. VA records dating back to early 2002 show a diagnosis of PTSD and depression. As the veteran did not engage in combat with the enemy, corroboration of the veteran's claimed stressors is necessary to support a diagnosis of PTSD. In order for a stressor to sufficiently support a diagnosis of PTSD, a person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and the person's response involved intense fear, helplessness, or horror. The record in this case reflects that the veteran has a diagnosis of PTSD; however, the diagnosis is not based on any corroborated stressor related to service. In a statement received at the RO in February 2004, the veteran reported that he was assigned to remove dead bodies, either from car wrecks or drownings, for a period of about one and a half years during service in Germany in the early 1980's. The veteran also reported that one night in January 1967, the veteran was pulling guard duty when the V.C. blew up the ammo dump. He saw the explosion from his post and he felt scared. He reported other times when he was on guard duty when bullets rang out over his head and hit sand bags around the tower on which he stood. As a supply man, he would get items with bullet holes or steel pots with hair and blood in them and blood stained clothing. There were times when he heard mortar rounds coming in and out all night long. Based on the veteran's statements, the RO determined that there was not enough evidence provided by the veteran to support a request for stressor verification from the U. S. Army & Joint Services Records Research Center (JSRRC), and requested that the veteran provide additional information regarding his claimed stressors. The veteran did not respond to that request. There is no evidence that the veteran engaged in combat with the enemy. The veteran has not provided verifiable stressors, and none of the veteran's claimed stressors have been independently corroborated. Although the veteran's claims file reveals that he is being treated for PTSD at a VA medical facility, service connection may not be granted for PTSD unless all of the requirements of 38 C.F.R. § 3.304(f) have been fulfilled, including credible supporting evidence of the occurrence of the claimed stressors on which the diagnosis of PTSD was based by the psychiatrist, psychologist, or other mental health professional who rendered it. The diagnosis of PTSD which the appellant received years after his separation from active service, by itself, does not entitle him to an allowance of service connection for PTSD in the absence of any credible supporting evidence of record y of his claimed in-service stressors. The veteran has been diagnosed with PTSD. However, to warrant service connection for PTSD, 38 C.F.R. § 3.304(f) provides that the diagnosis must conform to 38 C.F.R. § 4.125(a), and meet the criteria of DSM-IV. Moreover, the diagnosis of PTSD must be based either on a claim of account of events during demonstrated combat status or on verified stressors. The current PTSD diagnosis not conforming to the DSM-IV criteria and no probative weight may be assigned to any diagnoses of PTSD based on the veteran's unsupported account of combat participation or uncorroborated stressors. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for PTSD is not warranted. Glaucoma VA records from January 2002 note that the veteran had glaucoma, and VA records from December 2004 confirm an actual diagnosis of glaucoma. There is no indication in the record, however, that the veteran's glaucoma began during service or within a year following service. Likewise, there is no competent medical evidence linking the veteran's glaucoma to his military service. The only evidence supporting the veteran's claim is his assertion that his glaucoma should be service connected because he did not need glasses until he served on active duty. Although the veteran is competent to testify as to his in-service experiences and symptoms, such as blurriness, or eye pain for example, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on a medical diagnoses or causation of glaucoma competent. See Washington v. Nicholson, 19 Vet App 362 (2005), citing Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness' personal knowledge). In this case, the veteran is not competent to provide an opinion as to whether his current glaucoma was present during service or is a result of service. The service medical records are entirely negative for findings of glaucoma. Similarly, the medical evidence of record does not link the veteran's current glaucoma to any disease or injury in service, including any decreased visual acuity during service. Absent evidence of an in-service disease or injury and/or competent medical evidence relating the veteran's current glaucoma to service on any basis, service connection is not warranted. The preponderance of the evidence is against the claim of service connection for glaucoma; there is no doubt to be resolved; and service connection for glaucoma is not warranted. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. ORDER Service connection for PTSD is denied. Service connection for glaucoma is denied. REMAND The veteran seeks service connection for anemia. In statements to the RO, the veteran has asserted that his anemia is secondary to his service-connected gastrointestinal disorder. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The term "disability" as used in 38 U.S.C.A. § 1110, refers to impairment of earning capacity, and such definition of disability mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995) In light of 38 C.F.R. § 3.310 and the Allen case, the RO must consider whether the veteran's anemia disorder is proximately due to or the result of his service-connected gastrointestinal disability pursuant to 38 C.F.R. § 3.310(a). If however, the RO determines that the veteran does not have anemia that is proximately due to or the result of his service-connected gastrointestinal disability, the RO must now also consider whether the veteran has an anemia disorder which has been aggravated by his service-connected gastrointestinal disability, and, if so, the level of disability attributable to aggravation must be determined. In order to determine these questions, a VA examination is necessary. The veteran seeks entitlement to SMC based on the need for regular aid and attendance (A&A) of another person, or on account of being housebound. SMC is payable if as the result of service-connected disability, the veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 U.S.C.A. § 3.350(b). The following factors will be accorded consideration in determining whether the veteran is in need of regular aid and attendance of another person: (1) the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the veteran is in need of regular aid and attendance of another person. "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). The claims file contains two VA examinations conducted for the purposes of establishing whether the veteran was in need of regular A&A. At the first examination, in April 2002, the veteran's complaints included weakness, chest pain, right arm and rib pain, and low back pain. Additionally, the veteran was weak from poor nutrition secondary to reflux surgery. He also had depression and PTSD. He vomited often and had terrible trouble eating. He was tired and fatigued from the weakness and depression. The veteran was able to walk one block without assistance and he could leave his home daily with help. The diagnosis was reflux, depression, and low back pain. The examiner certified that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care. The July 2004 examination, conducted by the same VA provider, noted that the veteran continued to complain of depression, chest pain from surgery, and low back pain. The veteran was able to walk 5 or 6 blocks without assistance, but he needed help leaving the house because he fatigued easily. The diagnosis was low back pain, PTSD, depression, esophagitis, and chest pain from surgery. The examiner certified that the veteran required the daily personal health care services of a skilled provider without which the veteran would require hospital, nursing home or other institutional care. The medical evidence in this case shows that the veteran needs daily personal health care services; however, it is unclear as to whether those services are necessary because of the veteran's service-connected disabilities. The veteran's service-connected disabilities include: residuals of incisional hernia repair with marlex mesh (40%); reflux esophagitis and gastric dysmotility, residuals of esophagectomy, pyloroplasty, gastrectomy, partial liver resection, lysis of adhesions, hiatal hernia repair and cholecystectomy (40%); right thoracotomy with restrictive lung disease (30%); tinnitus (10%); diabetes mellitus, type II (10%); hearing loss (0%); and residuals right saphenous ligation (0%). The examinations of April 2002 and July 2004 reveal that the veteran needs A&A based on both service-connected disabilities and non-service-connected disabilities, and they do not indicate whether the veteran's service-connected disabilities alone account for the veteran's need for A&A. As such, another VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all available recent VA and/or private medical records concerning treatment received by the veteran for his anemia, and other service-connected disabilities, not already associated with the claims file. 2. Schedule the veteran for a VA examination to determine the current nature, extent, and manifestations of the veteran's service-connected gastrointestinal disability as well as his anemia disorder. All indicated x-rays and laboratory tests should be completed. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner should be asked to determine what relationship exists, if any, between the veteran's service- connected gastrointestinal disability and any current anemia disorder. The examiner should also indicate if the veteran's service-connected gastrointestinal disability aggravates any current anemia disorder, and, if so, what level of disability is attributable to aggravation. A complete rationale must accompany all opinions. 3. Schedule the veteran for a VA aid and attendance examination to determine whether his current service-connected disabilities only render him unable to independently perform the daily functions of self-care on a regular basis. The examiner should comment on whether the veteran's disabilities prevent him from protecting himself from the hazards incident to his environment, keeping himself clean and presentable, feeding himself due to loss of coordination of the upper extremities or extreme weakness, attending to the wants of nature, or render him bedridden, or otherwise require the regular aid and attendance by another person. The claims file should be reviewed by the examiner in conjunction with the examination. A complete rationale must accompany all opinions. 3. Readjudicate the veteran's claims for entitlement to service connection for anemia and SMC. Specifically consider whether the veteran has anemia secondary to his service-connected gastrointestinal disability, taking into consideration the provisions of 38 C.F.R. § 3.310(a) and the directives set forth in Allen regarding aggravation. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC), and allowed an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs