Citation Nr: 0812188 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-14 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a neck disorder. 4. Entitlement to service connection for numbness of the upper extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1976 to August 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the San Diego Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for depression and paranoia, herniated disc, spina bifida, neck condition, and bilateral numbness in the arms and declined to reopen claims seeking service connection for bilateral knee and right shoulder disorders. On his March 2003 notice of disagreement and his April 2004 Form 9, the veteran specifically limited his appeal to the disorders stated on the previous page and those are the only matters before the Board. In June 2007, the Board remanded the claims for further development. FINDINGS OF FACT 1. There is no competent medical evidence of record that shows that the veteran's variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis is etiologically related to situational maladjustment documented in service. 2. A low back disorder, a neck disorder, and numbness in the upper extremities were not manifested in service; arthritis of the spine was not manifested in the first postservice year; and there is no competent evidence that relates any current back disorder, neck disorder, or numbness in the upper extremities to the veteran's service or to any event therein. CONCLUSIONS OF LAW 1. The veteran's variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. Service connection for a low back disorder is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 3. Service connection for a neck disorder is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 4. Service connection for numbness in the upper extremities is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate his claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a June 2002 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of any further evidence that pertains to the claim. In July 2007, the veteran was provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability. The claim was last readjudicated in August 2007. As discussed above, the veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that there is a preponderance of the evidence against the veteran's claims, any questions as to an appropriate disability rating and effective date to be assigned are rendered moot. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the veteran. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The claims file indicated that the veteran had bouts with homelessness, thus VA has a heightened duty to assist. Here, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records, post-service VA treatment records, as well as medical records considered in conjunction with his Social Security disability benefits determination. For reasons explained in detail below, the veteran has not been afforded a VA examination in response to his service connection claims as the Board has determined that no such examination is required where the evidence currently of record fails to indicate that the veteran has a current disability that is possibly related to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. II. Factual Background Service medical records, including a July 1976 separation examination are negative for any complaints, treatment, or diagnoses relating to a variously diagnosed psychiatric disorder, a lumbar or cervical spine disorder, and/or numbness in the upper extremities. A June 1976 report of mental status examination showed that the veteran did not have a psychiatric disorder although he displayed symptoms of situational maladjustment. By his own admission he indicated that he could not cope with military life and was wasting his own and the Army's time. He was disinterested in his occupation and felt that he could never adjust to the service. He was psychiatrically cleared for administrative action deemed appropriate by command. It was determined that he was qualified for expeditious discharge and was discharged under honorable conditions. 1997 to 2003 treatment records from San Diego Health Care System showed treatment for low back and neck pain, sensory radiculopathy, and depression with psychotic features. May 1997 records noted that the veteran had used cocaine for 13 years and occasionally drank alcohol and smoked marijuana. He did not have paranoia when he first started to use cocaine. He had complaints of back pain and denied having in-patient or out-patient psychiatric treatment, although he endorsed having auditory hallucinations. A history of back arthritis and spina bifida was noted. In January 1999, he reported that he had auditory hallucinations; he had no prior treatment for depression or other psychiatric disorders. After examination, the impression included major depressive disorder with psychotic features/cocaine abuse/dependency disorder. A February 1999 record noted that the veteran felt that his depression pre-dated his auditory hallucinations. He did not report any episodes of depression prior to the mid-80's concurrent with initiation of his drug use. He thought that his life was good prior to that time. He indicated that the only time he saw a psychiatrist in the past was in 1976 while he was in the Army. He saw a doctor for "anger and bad dreams" and was discharged form the Army for being "unable to adjust to Army life". A history of spina bifida and degenerative joint disease for the lumbar spine was noted. In April 1999, the veteran reported that he was experiencing sharp pain in his shoulder that radiated down to his elbow and caused problems with numbness of his forearm, hand, and fingers. A July 1999 record also included a history of cervical neuroforaminal stenosis. A September 1999 record noted a long history of rock-cocaine abuse and a psychotic disorder (possibly schizophrenia vs. an induced psychotic disorder), which had only been diagnosed over the last two years. A September 2000 record reported complaints of increasing back and neck pain. The veteran also indicated that his hands would go numb if he raised them over his head. A July 2001 record noted complaints of numbness in the arms. His psychosocial circumstances included a history of homelessness and an ill mother. Psychiatric issues included a history of polysubstance dependence and a history of depression. He was currently depressed about his homelessness. A September 2001 record noted chronic low back pain and muscle spasms. He reported left hand pain for the past four weeks from falling onto his outstretched hand. He was concerned by the numbness and tingling in his left hand, particularly in the area of the 4th and 5th fingers, as well as residual weakness in grip strength. On examination, there was some swelling, weakness, subjective tenderness, and numbness. On examination, the left upper extremity was neurovascularly intact. X-rays were negative. February 2002 record noted dull pain in the back with some sensory radiculopathy in the arms. An April 2002 record included the impression of psychotic disorder, not otherwise symptomatic. In November 2002, the veteran reported that he had neck pain for the last 10 to 12 years. March 2003 records noted numbness and decreased motor strength in the hands and arms. Records considered in conjunction with the grant of Social Security Administration (SSA) disability benefits, included private and VA treatment records. Many of the VA records were duplicative of those discussed above. 1996 to 1998 treatment records from Logan Heights Family Health Center noted complaints of low back pain. A March 1997 record from Dr. J. E. M. included x-rays that revealed spina bifida occulta and spondylolisthesis in L5-S1 with degenerative disc disease. A May 1999 record from Dr. H. D. E. included a diagnostic impression of cocaine dependence; possible cocaine induced psychotic disorder with hallucinations; dysthymia; and possible psychotic disorder, not otherwise symptomatic (auditory hallucinations). October and November 1999 records from Seagate Medical Group and Dr. D. E. G. noted a history of chronic pain and psychiatric treatment in July 1997 for drug abuse and probable drug induced mood disorder, anxiety, and psychotic disorder. It was noted that in April 1999, he was again diagnosed with substance abuse, possible drug induced psychosis, dysthymia, and possible psychotic disorder, not otherwise symptomatic. 2005 VA treatment records from San Diego Health Care System included an impression of cervical radiculopathy and cervical spondylosis. The veteran underwent epidural steroid injections. In November 2005, he was seen mostly for myofascial pain and intermittent temporary numbness in his legs and arms. In June 2000, the veteran was awarded SSA disability benefits for disorders of the back. The date the disability began was in August 1997. 2004 to 2007 records from San Diego Health Care System contained some duplicative records considered in the SSA disability benefits determination and were already discusses above. 2004 records showed treatment for lumbar radiculopathy and tight paracervical muscles. A May 2004 psychiatry attending note indicated that the veteran had psychosis, not otherwise symptomatic, possibly secondary to polysubstance remission. 2005 and 2007 records showed cervical epidural steroid injections. A March 2007 record noted a history of lumbar and cervical epidural steroid injections. III. Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303. Certain chronic diseases (including arthritis and psychosis), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for the diseases at issue herein) following discharge from service or onset of recognized incubation period. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309. In order to prevail on the issue of service connection, there must be 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 medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim and weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Variously Diagnosed Psychiatric Disorder The veteran contends that he is entitled to service connection for variously diagnosed psychiatric disorder. After careful consideration of all procurable and assembled data, the Board finds that service connection for this claimed disability is not warranted. Here, there is no competent medical evidence of record that shows that the veteran's variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis is related to the situation maladjustment documented in the service medical records. Rather, the medical and testimonial evidence of record tends to show that the veteran's variously diagnosed psychiatric disorder(s) the veteran has experienced after service are due to nonservice-related factors, such as poly-induced depression and psychosis, and/or depression related to his bouts of homelessness. During service the veteran was only diagnosed with situational maladjustment, which by its very own definition meant that the veteran was having a hard time adjusting to a situation he currently faced--he had a hard time adjusting to military life. No chronic psychiatric disorder was documented in service, or at separation, or at the July 1976 VA examination, which tended to show that the veteran's symptoms of situational maladjustment were acute and transitory and in response to the particular situation he faced at that time. After service, the first episode of depression was not documented until 1997. In May 1997, the veteran himself reported that he did not have paranoia when he first started to use cocaine 13 years ago. Also, in February 1999 he indicated that he did not have any episodes of depression prior to the mid-80's concurrent with initiation of his drug use. A May 1999 record from Dr. H. D. E. included a diagnostic impression of possible cocaine induced psychotic disorder with hallucinations. A July 2001 VA record indicated that the veteran was currently depressed about his homelessness. A May 2004 VA psychiatry attending note indicated that the veteran had psychosis, not otherwise symptomatic, possibly secondary to polysubstance remission. In essence, the evidence of a variously diagnosed psychiatric disorder and evidence of a nexus between the claimed disability and the veteran's military service, is limited to his own statements. This is not competent evidence of a current psychiatric disability and a nexus between the claimed disability and the veteran's active service since laypersons, such as the veteran, are not qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As such, the Board finds that service connection is not in order for a variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis. There is no evidence that psychosis was manifested in the first postservice year (so as to trigger the chronic disease presumptions of 38 U.S.C.A. § 1112). A lengthy time interval between service and the initial postservice manifestation of a disability for which service connection (here a period of approximately 19 years) is sought is, of itself, a factor weighing against a finding of service connection. For the reasons set forth above, the Board finds that there is a preponderance of the evidence against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Low Back Disorder, Neck Disorder, and Numbness of the Upper Extremities Although the record reflects that the veteran appears to have some sort of low back and neck disability and has numbness of the upper extremities, his service medical records do not show a back or neck injury or any treatment for numbness of the upper extremities (on service separation examination no back or neck abnormality was noted and no numbness of the upper extremities was indicated). There is no evidence that arthritis of the spine was manifested in the first postservice year (so as to trigger the chronic disease presumptions of 38 U.S.C.A. § 1112). Furthermore, there is no competent (medical) evidence that relates any current low back, neck, or numbness of the upper extremities to the veteran's military service. Because the veteran is a layperson, his own opinions relating these disabilities to service are not competent evidence. The low back, neck, and numbness disabilities were not shown until at least 19 years after the veteran's service separation. A lengthy time interval between service and the initial postservice manifestation of a disability for which service connection is sought is, of itself, a factor weighing against a finding of service connection. Furthermore, post service medical records attribute the veteran's numbness in his upper extremities to lumbar and/or cervical radiculopathy and an incident in 2001 whereupon the veteran fell on his left hand. There is a preponderance of the evidence against these claims. Hence, they must be denied. ORDER Entitlement to service connection for a variously diagnosed psychiatric disorder, including depression, paranoia, and psychosis is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for numbness of the upper extremities is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs