Citation Nr: 0813799 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 07-16 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a gastrointestinal disorder including diverticulosis and gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for a chronic acquired disorder claimed as anxiety disorder. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to an increased rating for pes planus, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The veteran had active military service from March 1943 to January 1946. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned Veterans Law Judge at the RO in February 2008. A motion to advance the case on the Board's docket has been granted. The issues of service connection for psychiatric disorders including anxiety disorder and PTSD, and an increased rating for pes planus 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. Hypertension was not shown in service, and essential hypertension, was first noted many years after service. 2. There is no competent evidence of record showing a causal relationship between the veteran's gastrointestinal disorders and any incident of service. CONCLUSIONS OF LAW 1. Essential hypertension was not incurred in or aggravated during active military service and may not be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 2. A gastrointestinal disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Review of the record reveals that all appropriate notice and development has been accomplished. See 38 U.S.C.A. §§ 5100 et seq. (West 2002 & Supp. 2007). Notice as to what evidence needed, as well as the type of evidence necessary to establish a disability rating and effective date for that disability, has been provided. A December 2006 letter provided pertinent notice and development information. There is no indication that there is additional evidence or development that should be undertaken. The Board declines to obtain a medical nexus opinion with respect to the claims of service connection. In the absence of evidence of medical treatment for hypertension and a gastrointestinal disorder in service or within a reasonable time subsequent to the veteran's military service, the Board finds that any medical opinion would be based on pure speculation. See 38 C.F.R. § 3.102 (service connection may not be predicated on a resort to speculation or remote possibility). For the above reasons, the Board finds that development of the record is sufficiently complete to permit a fair and just resolution of the appeal, and there has been no prejudicial failure of notice or assistance to the appellant. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. The record contains service medical records, as well as, post service VA and private medical records. Entitlement to service connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. In order to establish service connection for the claimed disability, there must be (1) medical evidence of a 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). 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, 8 (1999). Service connection may be presumed for certain chronic diseases such as essential hypertension which are manifest to a compensable degree within the year after qualifying active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Private and VA outpatient records contain diagnoses of GERD, diverticulosis, and hypertension. These diagnoses satisfy the first element of Hickson. In regard to the second element of Hickson, evidence of in- service incurrence or aggravation, the service medical records do not show complaints or diagnoses regarding a gastrointestinal disorder or hypertension. Further, the record does not contain a diagnosis of a hypertensive disorder within one year subsequent to service discharge, let alone, manifested to a degree of 10 percent within that year. In fact, the earliest evidence documenting a diagnosis of hypertension and a gastrointestinal disorder consists of a private examination report dated in August 1977 that noted that he carried diagnoses of bleeding gastric ulcer and hypertension, which is more than 31 years after service discharge. This is an extensive period of time subsequent to service discharge in 1946 before gastrointestinal or hypertensive disorders are identified. See, Cf. Mense v. Derwinski, 1 Vet. App. 354 (1991). More importantly, the record does not contain any clinical evidence that would tend to suggest that hypertension or a chronic gastrointestinal disorder was incurred during military service. The medical records do not include any opinion stating that either hypertension or a chronic gastrointestinal disorder was either incurred in, or aggravated during service. In summary, the Board finds that an excessive degree of speculation is required to conclude that the veteran's diagnosed hypertension and gastrointestinal disorders are related to service. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a gastrointestinal disorder including diverticulosis and GERD is denied. REMAND The veteran claims that he has psychiatric disorders including PTSD and an anxiety disorder that resulted from his military service. The claims file contains somewhat conflicting information. The initial rating action in March 1943 indicates that the veteran was not involved in combat; however, the DD Form 214 (Report of Transfer or Discharge) shows that his military occupational specialty was listed as heavy machine gunner. Further, under the section that list battles and campaigns is Ardennes Rhineland Central Europe. The veteran has reported stressors that included being involved in combat and being bombed while hospitalized for pneumonia in December 1944. The service medical records show that he was hospitalized for pneumonia. VA outpatient records dated in 2001 (prior to his claim) show that a PTSD screen was positive. The Board finds that the veteran should undergo VA examination to determine whether he has a psychiatric disorder related to military service. In February 2007, the RO notified the veteran of the denial of service connection for disabilities listed on the title page. He was also informed that the RO increased the disability evaluation for his service-connected pes planus. In February 2007, the veteran and his agent indicated a disagreement with "all adjudicative determinations mentioned" in the February 2007 letter. A statement of the case (SOC) was issued in April 2007, but did not include the issue of an increased rating for pes planus. An unprocessed notice of disagreement should be remanded, not referred, to the RO/AMC for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED for the following actions: 1. The RO/AMC should review the veteran's statements regarding the stressors to which he was exposed during service. The appellant should be informed that he might submit independent evidence (from military as well as nonmilitary sources) that he might have in his possession that would tend to corroborate the veteran's stressors. The RO/AMC should assist the appellant in obtaining such evidence, if appropriate. All documents, correspondence, reports or statements obtained or generated, as a result of these inquiries should thereafter be associated with the claims folder. 2. If the veteran has provided information in sufficient details, the RO/AMC should request the U.S. Army and Joint Services Records Research Center (JSRRC) to provide any information that might corroborate the veteran's alleged stressors. If the case is not referred to JSRRC, the RO should indicate in the record why the case was not referred. 3. Whether or not records are obtained, the RO/AMC should afford the veteran a psychiatric examination to determine the nature and etiology of any psychiatric disorder. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. The examiner should provide opinion as to whether it is at least as likely as not (that is, a probability of 50 percent or better) that any current psychiatric disability was incurred during his military service or is otherwise the result of occurrences therein. If this cannot be medically determined without resorting to mere conjecture, this should be commented upon in the report. If a diagnosis of PTSD is made, the examiner should (1) specify the credible "stressors" forming the basis for the diagnosis and the evidence upon which he/she relied to establish the existence of the stressor(s), and (2) describe which stressor(s) the veteran reexperiences and how he reexperiences them. The examiner should comment on the sufficiency of the veteran's reported stressor. The report of examination should include a complete rationale for all opinions expressed. 4. The RO should issue a SOC with respect to the claim of an increased rating for pes planus. The veteran is advised that a timely substantive appeal will be necessary to perfect the appeal as to this claim to the Board. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, this issue is to be returned to the Board for further appellate consideration, if otherwise in order. 5. The RO should then review the claims and if the benefits sought on appeal remain denied, the appellant should be furnished a supplemental statement of the case (SSOC) and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs