Citation Nr: 0812179 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-10 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for degenerative arthritis. 2. Entitlement to service connection for psychiatric disability, to include post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for sinusitis. 4. Entitlement to a rating in excess of 10 percent for a duodenal ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from April 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the veteran's claims of service connection for degenerative arthritis, psychiatric disability, sinusitis, and to an increased rating duodenal ulcer (gastrointestinal disability). In June 2007, the veteran testified at a Board videoconference hearing held at the local VA office. In correspondence dated December 2007, the veteran indicated he did not want a new hearing after being informed that the Veterans Law Judge who conducted his June 2007 hearing was no longer employed by the Board. When this matter was before the Board in August 2007, it was remanded for further development. The veteran's psychiatric disability, sinusitis and duodenal ulcer claims 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. FINDING OF FACT The veteran's degenerative arthritis first manifested many years after service and is not related to any aspect of service. CONCLUSIONS OF LAW The criteria for service connection for degenerative arthritis have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Some chronic diseases may be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a) (1); 38 C.F.R. §§ 3.307, 3.309 (listing applicable chronic diseases, including arthritis). The veteran claims his currently diagnosed degenerative arthritis is the result of his period of active duty service. At the June 2007 hearing, he testified that he complained of joint pain and stiffness in service. However, service medical records are silent for injuries, treatment, or diagnoses of any chronic musculoskeletal conditions. Although his May 1969 separation examination indicated that he had surgical repair of a fractured fragment in his right upper foot, his musculoskeletal system was noted to be normal. Post-service VA records show that the veteran was treated for arthritis since 1994. He also received treatment at a private facility where he complained of pain in his hips, knees, elbows, shoulders, and wrists. He was diagnosed with degenerative arthritis, etiology undetermined. The Board must note the lapse of many years between the veteran's separation from service and the first treatment for the claimed disorder. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The Board concludes that service connection for degenerative arthritis is not warranted. Service medical records are silent for chronic musculoskeletal conditions involving the veteran's hip, knee, shoulder, elbow, and wrist joints. Thus, the Board finds that the veteran does not have chronic conditions that had their onset during service because if he were symptomatic during service, the Board concludes he would have sought treatment for the disorders. In addition, the record does not contain a medical nexus opinion relating the veteran's current degenerative arthritis of the joints to active service. To the contrary, diagnoses of the condition specifically state "etiology undetermined." Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in August 2001 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues of service connection for degenerative arthritis and an acquired psychiatric disorder. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records and VA outpatient records. The veteran submitted additional medical records as well as various written statements, and was provided an opportunity to set forth his contentions during the his June 2007 Board hearing. The Board acknowledges that he was not afforded a VA examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, as there is no evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period, the Board finds that an examination is not necessary. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims of service connection for degenerative arthritis and an acquired psychiatric disorder that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for degenerative arthritis is denied. REMAND The veteran principally maintains that service connection is warranted for psychiatric disability because the condition is related to his service-connected gastrointestinal disability. In July 2005, a VA examiner diagnosed the veteran on Axis I as having PTSD, depression and alcohol dependency, and on Axis III cited his stomach ulcers; the examiner also noted his sinusitis. The examiner's reference to the veteran's service-connected gastrointestinal on Axis III suggests a nexus between his psychiatric disability and his service- connected disability. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). As such, the Board finds that he must be afforded a VA examination. McLendon. In addition, at the June 2007 hearing, the veteran described alleged incidents that may be construed as his claimed in- service stressors. First, he related that he (1) was once hit by his drill sergeant; (2) was forced by his drill sergeant to wear boots in the shower and in bed; (3) found his firefighting job to be stressful in general; and (4) had an alcoholic father at home who abused his mother and siblings, causing him to feel guilty for not being at home to protect them. He also testified that an airman committed suicide during basic training. However, the veteran has not identified the approximate date of this alleged stressor, nor has he provided the name or unit of the deceased airman. The veteran asserts that service connection is warranted for sinusitis on the basis that the condition had its onset during his period of active duty. The RO has denied service connection for sinusitis on the basis that there is no medical evidence linking the condition to the veteran's period of active service. At the June 2007 hearing, he testified that he suffered from a chronic head cold in service as the result of inhaling fumes from burning toxic materials, and that the symptomatology never subsided. Significantly, the veteran noted to the physician conducting his separation examination in May 1969 that he suffered from a chronic cold in service for nine months. Today, he suffers from headaches, a sore throat, and post-nasal drip, which have alternatively been diagnosed as allergic rhinitis and sinusitis. It is thus the opinion of the Board that the veteran must be afforded a pertinent VA examination to determine whether it is at least as likely as not that he has a current respiratory disability that might be related to or had its onset during service. McLendon. As to his claim for an increased rating for a duodenal ulcer, the veteran was afforded his most recent VA digestive conditions examination in July 2004. Since that time, he testified that he suffers from an upset stomach a few times per day, which lasts between one and six hours. He further noted that the pain associated with his ulcer occasionally exacerbates to the point where he is confined to his house until it subsides. As such, the Board must also remand this matter to afford the veteran an opportunity to undergo a new VA examination, which must be conducted after all outstanding records have been obtained. 38 U.S.C.A. 5103A(d)(1) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO should secure all of the veteran's VA treatment records dated after March 2005, from the Dothan Clinic in Dothan, Alabama. 2. The RO should request the veteran to provide any additional information, including dates, locations, names of other persons involved, etc. relating to his claimed service stressors. The veteran should be advised that any additional information would be helpful to obtain supportive evidence of the claimed in- service stressors and that he should be specific as possible so that an adequate search for corroborating information can be conducted. 3. After associating with the claims folder all available records received pursuant to the above-requested development, the RO should afford the veteran a VA psychiatric examination to determine the nature, extent and etiology of any psychiatric disability found to be present. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be conducted, and the examiner should rule in or exclude a diagnosis of PTSD. The report of examination should note all psychiatric disabilities found to be present, and the examiner should comment as to whether it is at least as likely as not that any psychiatric disability found to be present is related to or had its onset during service. If the examiner diagnoses the veteran as having PTSD, the examiner should indicate the stressor(s) underlying that diagnosis. The examiner must also opine as to whether it is at least as likely as not that any psychiatric disability found to be present developed or was aggravated by his service-connected gastrointestinal disability. In offering this assessment, the examiner must comment on the July 2005 VA examiner's Axis I diagnoses of PTSD, depression and alcohol dependence and the notation on Axis III of stomach ulcers. The rationale for any opinion expressed should be provided in a legible report. 4. After associating with the claims folder any outstanding records, the veteran should be afforded an appropriate VA examination to determine the nature, extent, etiology and/or onset of any allergic rhinitis/sinusitis found to be present. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be conducted. The examiner is requested to offer an opinion as to whether it is at least as likely as not that any respiratory disorder found to be present is related to any incident of service or had its onset during the veteran's period of military service. Specifically, the examiner is quested to determined the likelihood that the nine-month long cold noted by the veteran in his May 1969 separation examination is related to his currently diagnosed respiratory condition. The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 5. The RO should schedule the veteran for an appropriate VA examination to determine the nature, extent and severity of his duodenal ulcer. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be conducted. The examination should also determine if the veteran suffers from symptoms of pain, vomiting, material weight loss and hematemesis, or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Further, it should be reported for the record as to whether there are recurrent incapacitating episodes averaging 10 or more days in duration, and if so, how often per year, or if there are continuous moderate manifestations of disability. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 6. After completing any additional necessary development, the RO should readjudicate the remaining claims on appeal. If the disposition of any claim remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. 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). 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). ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs