Citation Nr: 0812134 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-15 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for bilateral knee disability. 2. Entitlement to service connection for bilateral shoulder disability. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). 4. Entitlement to service connection for a lumbosacral spine disability. 5. 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 HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1970 to November 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2007, a hearing before the undersigned acting Veterans Law Judge was held at the RO; a transcript of this hearing is of record. At the August 2007 hearing, the veteran submitted additional evidence that was not reviewed by the RO. However, he waived RO consideration of the additional evidence, permitting the Board to consider such records in the first instance. See 38 C.F.R. § 20.1304(c) (2007). Hence, the additional evidence is being considered. The issues of entitlement to service connection for a lumbosacral spine disability and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. The veteran is not shown to have a bilateral knee disability. 2. The veteran is not shown to have a bilateral shoulder disability. 3. The veteran did not engage in combat, there is no credible supporting evidence of a claimed stressor event in service to support a current diagnosis of PTSD, and the veteran's PTSD has been attributed to post-service causes. CONCLUSIONS OF LAW 1. Service connection for a bilateral knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. Service connection for a bilateral shoulder disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 3. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the claims for service connection for PTSD, a bilateral knee disability and a bilateral shoulder disability, the veteran was advised of VA's duties to notify and assist in the development of the claims in a May 2005 letter, prior to the March 2006 rating decision on appeal. The letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also specifically informed the veteran to submit any pertinent evidence in his possession. Furthermore, in a September 2006 letter, he was given notice regarding ratings and effective dates of awards, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was given ample time to respond and supplement the record. Regarding the duty to assist, the RO has obtained the veteran's service medical records (SMRs) and post-service VA and private treatment records, to include records from the Social Security Administration (SSA). The veteran provided testimony at an August 2007 travel Board hearing. Therefore, there is no further medical evidence to obtain. The Board concludes that a VA examination is not necessary. In Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 C.F.R. § 3.159(c)(4)(i) requires that a claimant establish that he or she has suffered an event, injury, or disease in service in order to trigger VA's obligation to provide a VA medical examination or obtain a medical opinion. Here, there is no medical evidence of PTSD related to the veteran's service; rather, PTSD has been related to post-service stressors. Furthermore, there is no medical evidence of a current diagnosis of a bilateral knee disability or a bilateral shoulder disability. A medical opinion is not necessary to decide these claims, as such opinion could not establish disease or injury in service. See also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (the Board is not required to accept a medical opinion that is based on the veteran's recitation of medical history). The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. Thus, VA's duty to assist is also met. II. Service Connection Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303(a). Service connection also 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). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent (medical) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board notes that it has reviewed all of the evidence in the veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. A. Bilateral Knee Disability Here, the veteran testified during the August 2007 travel Board hearing that he injured his knees when he jumped and landed on frozen ground during his military service. However, his SMRs, including an October 1972 separation examination report, contain no mention of a knee disability. Moreover, there is no post-service medical evidence of a knee disability. Accordingly, service connection for a bilateral knee disability is not warranted. See Gilpin, Brammer, supra. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). B. Bilateral Shoulder Disability Here, the veteran maintains that he has a shoulder disability that had its onset during his military service. While the veteran's service medical records do show complaints of right shoulder pain in January and February 2001, X-rays of the right scapula were negative, examination was normal and the assessment was acute muscle strain. On separation examination in October 1972, no complaints or findings of a shoulder disability were noted; clinical evaluation of the upper extremities was normal. Furthermore, there is no post- service medical evidence of a shoulder disability. Accordingly, service connection for a bilateral shoulder disability is not warranted. See Gilpin, Brammer, supra. C. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). 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); West v. Brown, 7 Vet. App. 70 (1994). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The veteran contends that he was mentally harassed by his commanding officer during his military service. Specifically, he states that he was written up for poor performance in service, when he actually was unable to complete his assigned tasks because of physical injuries. His requests to go to Viet Nam and for leave were denied on several occasions. His wife testified that he was a "totally different person" after his military service. Additional alleged stressors include participation in a gunfight and shooting another person in self defense in May 1973 (after service) and post-service employment as a firefighter. The veteran's DD Form 214 indicates that his military occupational specialty was infantryman indirect fire crewman. His awards and decorations include a National Defense Service Medal. The veteran's SMRs are negative for complaints or findings related to PTSD. A September 2001 VA outpatient treatment record notes that the veteran was seen for a psychiatry referral. The examiner noted that the veteran had some features of PTSD from his former occupation as a forest firefighter. He described being overrun by a fire and indicated that he felt some guilt from his participation in the fire which consumed Los Alamos the previous year. A March 2002 VA mental health assessment consult report notes the veteran's complaints of anxiety dating back to at least his military service. He reported intrusive symptoms which began shortly following his experience working as a firefighter during the Dome fire in 1996, in which he had to protect and save himself using his fire shelter and remaining in it for 55 minutes. He saw other firefighters burned as well. Thereafter, his symptoms were markedly exacerbated as a result of his involvement in the Cerro Grande fire. Currently, the veteran reported vivid nightmares related to the fires. The veteran also reported that he felt harassed and victimized during his military service; however, he did not report a discrete, traumatic incident. He expressed that he was unhappy about his general (rather than honorable) discharge. The assessment was full spectrum PTSD secondary to his work as a firefighter. Private treatment records dated from 2003 to 2005 note the veteran's history of PTSD. No stressor event was noted in conjunction with the diagnosis. In a May 2005 statement, the veteran's mother stated that she did not receive any mail from the veteran for the first year that he was stationed in Germany. She was ultimately informed by the veteran that he had not written because the treatment he had received from his commanding officers was causing him stress and anxiety. The veteran's mother also stated that after his discharge, the veteran was a very different person. Specifically, he drank and smoked marijuana so heavily that his parents did not know what to do. She also stated that the veteran became anti-social and mean. An October 2005 VA PTSD medication evaluation report notes that the veteran's symptoms were triggered by news of a recent fire in California; the veteran tried not to watch news of this fire. Records from SSA show that the veteran had been rated as disabled, with disorders of the back noted as his primary disability and anxiety related disorders noted as his secondary disability, effective September 2000. During a January 2006 SSA examination, the veteran reported PTSD symptomatology, including intrusive symptoms following his work as a firefighter in the Dome fire in 1996, in which he had to protect and save himself using his fire shelter and remaining in it for almost an hour. He saw other firefighters who were burned as well. The veteran's PTSD symptoms were exacerbated as a result of the veteran's involvement in the subsequent Cerro Grande fire and Brandelier Park. The veteran also reported that, as a child, he was physically and mentally abused by his mother, and while in the military, he "had problems" with his captain in Germany. The diagnoses included severe, chronic PTSD secondary to firefighting experiences. The veteran's claim seeking service connection for PTSD is not predicated on a combat stressor event (and none is shown); it is instead based on allegations that the veteran was mentally harassed in service. The veteran has been diagnosed with PTSD. However, the medical evidence of record attributes the diagnosis of PTSD to post-service stressors (the veteran's post-service firefighting experiences). There is no objective medical evidence to link PTSD to the veteran's service. Because the veteran and his mother are not medical experts, they are not competent to express an authoritative opinion regarding either his medical condition or any questions regarding medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board concludes, accordingly, that the medical findings on examination are of greater probative value than the statements by the veteran and his mother regarding the etiology of his disability. The Board finds, therefore, that the preponderance of the evidence is against the claim for service connection for PTSD. ORDER Service connection for a bilateral knee disability is denied. Service connection for a bilateral shoulder disability is denied. Service connection for PTSD is denied. REMAND Further development of the record is required to comply with VA's duty to assist the veteran in the development of the facts pertinent to his remaining claims. Regarding the claim seeking service connection for a lumbosacral spine disability, the veteran has testified that he has had a low back disability since service, when he injured his back while unloading mortars from a truck. His SMRs reveal that he was seen in February 1971 with complaints of low back pain with radiation of the pain down the right leg. Examination revealed full range of motion in the back. The diagnosis was acute muscle strain. Post-service medical evidence includes the veteran's report of injury to his back when lifting a log in 1994, when lifting a carpet in August 2001, and when falling on ice and snow in December 2001 and January 2002. August 2001 VA treatment records note that the veteran was seen in the emergency room with complaints of low back pain and numbness in the left buttock; the assessment on follow-up in September 2001 was intervertebral disc displacement. A March 2002 VA examination report notes a diagnosis (confirmed by X-ray) of minimal disc narrowing L3-4 with vacuum phenomenon. The examiner did not offer an opinion as to the etiology of the veteran's current low back disability. Therefore, additional VA examination is necessary. See 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the claim seeking TDIU, this claim is inextricably intertwined with the claim seeking service connection for a lumbosacral spine disability. Hence, adjudication of the TDIU claim must be deferred pending resolution of this claim. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded an examination by a physician with appropriate expertise to determine the etiology of his low back disability. The veteran's claims file must be reviewed by the examiner in conjunction with the examination. Any indicated tests and studies should be performed and all clinical findings reported in detail. Based upon the examination results and the review of the medical evidence in the claims file, and with consideration of sound medical principles, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that any current low back disability began during, or is causally related to, service (as opposed to any post-service accident or injury). The rationale for the opinion must be explained. 2. Thereafter, the RO should undertake any other development it determines to be warranted, to include obtaining any medical opinions (to include regarding the claim for TDIU) deemed necessary. 3. The RO should then re-adjudicate the claims for service connection for a lumbosacral spine disability and for TDIU. If either remains denied, the RO should issue an appropriate Supplemental Statement of the Case and provide the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 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). ______________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs