Citation Nr: 0815088 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-25 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran's representative ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in July 2005 and October 2007. The veteran was scheduled to report for a VA Travel Board hearing in March 2008. He was unable to report at that time due to an illness of his wife, and the undersigned Veterans Law Judge instead accepted oral testimony from the veteran's representative and additional medical and lay evidence, accompanied by a waiver of RO review. See 38 C.F.R. § 20.1304 (2007). FINDINGS OF FACT 1. The veteran's PTSD is productive of no more than mild to moderate symptoms, with nightmares and recurrent thoughts about the corroborated in-service injury, becoming vigilant and easily startled, and anxiousness, but no significant impairments in terms of in terms of affect, memory, speech, or judgment. 2. The veteran's claimed left shoulder disorder has not been shown to have been incurred in or aggravated by any incident of service, or manifest to a compensable degree within one year after service. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2007). 2. A left shoulder disorder was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. In the present case, the veteran was issued VCAA letters meeting the specific requirements of C.F.R. § 3.159(b)(1) in March 2005 and April 2007. As these letters were issued prior to the respective appealed rating decisions, this case raises no procedural concerns in view of the Mayfield line of decisions. Moreover, while the April 2007 letter addressed the veteran's initial claim of service connection for PTSD, rather than the initial rating claim on appeal, the question of whether a further VCAA letter for such a "downstream" issue is required was addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedent opinion, the General Counsel held that, in such circumstances, a Statement of the Case was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the required Statement of the Case was issued in January 2008. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, such notification was provided in the April 2007 letter. In this regard, the Board further observes that that service connection for PTSD has been established and that an initial evaluation for this disorder has been assigned. Thus, the veteran has been awarded the benefit sought, and his claim has been substantiated. Id. at 490-91. As such, 38 U.S.C.A. § 5103(a) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Also, it is of controlling significance that after being awarded an initial disability evaluation , the veteran filed a Notice of Disagreement contesting the initial rating determination. The RO furnished the veteran a Statement of the Case addressing such evaluation, including notice of the criteria for a higher evaluation, and provided the veteran with further opportunity to identify and submit additional information and/or argument, which the veteran has done by perfecting his appeal and submitting additional medical evidence in support of his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105. Under these circumstances, VA fulfilled its obligation to advise the veteran throughout the remainder of the administrative appeals process, and similarly accorded the veteran and his representative a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); but see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (concerning specific notification duties in increased, rather than initial, evaluation cases). As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained records of treatment reported by the veteran, and there is no indication from the claims file of additional medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. He has also been afforded a VA examination in conjunction with his PTSD claim. For reasons explained in further detail below, a VA examination has been found to not be "necessary" under 38 U.S.C.A. § 5103A(d) in regard to the claim of service connection for a left shoulder disorder. In summary, all relevant facts have been properly developed in regard to the veteran's claims, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Entitlement to a higher initial evaluation for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In the appealed October 2007 rating decision, the RO granted service connection for PTSD on the basis of the veteran's participation in a corroborated search and rescue effort following an aircraft crash in November 1968. A 30 percent evaluation was assigned as of April 17, 2007 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, PTSD which is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events), warrants a 30 percent disability evaluation. A 50 percent disability evaluation encompasses PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is warranted for PTSD manifested by occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted for PTSD which is productive of total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name. In the present case, the Board has considered the pertinent evidence of record, including VA outpatient records dated from October 2006 through October 2007 and the report of a July 2007 VA PTSD examination. This evidence, however, does not support an initial evaluation in excess of 30 percent. In this regard, while the veteran's noted symptoms have included nightmares and recurrent thoughts about the corroborated in-service injury, becoming vigilant and easily startled, and anxiousness, the Board notes that the pertinent evidence of record does not suggest any of the specific symptoms listed in the criteria for a 50 percent evaluation under Diagnostic Code 9411. The October 2007 VA examination was unremarkable in terms of affect, impairment of memory (the veteran reported "pretty good" memory), speech, and impairment of judgment, and no significant impairments have otherwise been shown by the record. Moreover, the veteran denied delusions, current hallucinations, and suicidal and homicidal thoughts during the examination, although he reported hearing voices several months earlier. As to the degree of occupational and social impairment, the veteran's Global Assessment of Functioning (GAF) scores have consistently been 65 or above, indicating, under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), mild symptoms or some difficulty in social and occupational functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. The examiner noted that the veteran, who was working for an airline company at the time of the October 2007 VA examination, had become "somewhat of a social isolate" with "some degree of occupational impairment," and one incident of his hitting his wife in bed was noted. However, the overall severity of his PTSD was described as mild to moderate. All of these findings are fully consistent with the currently assigned 30 percent evaluation and not commensurate with the criteria for a 50 percent evaluation. Additionally, the veteran has submitted no evidence showing that his PTSD has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Overall, the evidence of record does not support an initial evaluation in excess of 30 percent for PTSD, and the veteran's claim for that benefit must be denied. 38 C.F.R. § 4.7. III. Service connection for a left shoulder disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the present case, the veteran has asserted that his current left shoulder disorder was caused by injuries from a helicopter crash landing during service. These assertions are set forth in a lay statement received in May 2005. The claims file contains service department corroboration of a crash of a helicopter, with substantial damage, in January 1970 and a notarized lay statement from the U.S. Navy captain who commanded that helicopter and confirmed the veteran's presence on the helicopter at the time of the crash landing. The captain noted that the crew members were subjected to some very severe movement during the crash, particularly with the aircraft's spinning and traversing on the runway, into the grass, and back on the runway before going back in the air. The captain, however, did not cite to any specific injuries of the veteran or any other crew members. The Board has reviewed the veteran's service medical records and observes that they are entirely devoid of complaints of, or treatment for, any left shoulder symptomatology. The report of the veteran's June 1970 separation examination indicates normal upper extremities, with no notations of any "significant or interval history" or summary of defects or diagnoses, other than defective visual acuity. The veteran's physical profile and physical category were not listed, but he was found to be qualified for release from active duty and to perform the duties of his rate at sea and on foreign shores. Subsequent to service, the only medical evidence of record addressing the veteran's claim is a March 2008 letter from Rebecca S. Baskins, M.D., who described the veteran as a patient at a medical clinic and noted that he "has had left shoulder pain ever since an injury when he was in the military with a helicopter crash." Dr. Baskins reported that the veteran's symptoms had gotten progressively worse over time, and an MRI had shown a full-thickness rotator cuff injury. Given the history of the veteran's symptoms since the crash, Dr. Baskins stated that she was "suspicious that the injury may have been related to his military career" and noted that she had been told by him that he needed this letter in order for VA to treat him. In reviewing the above evidence, several considerations are warranted in view of decisions of the Court and the Federal Circuit. First, VA decisionmakers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence. Decisionmakers have discretion to accept or reject pieces of evidence, provided that sufficient reasons and bases are set forth explaining such actions. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992). The Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). However, in weighing evidence, the Court has held the probative value of a medical opinion largely depends upon the extent to which such an opinion was based on a thorough review of a veteran's medical history, as contained in his claims file. In cases where an examiner who has rendered a medical opinion has not had an opportunity to review the veteran's medical records, the medical opinion's probative value is substantially limited. See Miller v. West, 11 Vet. App. 345, 348 (1998) (bare conclusions without a factual predicate in the record are not considered probative). Additionally, the fact that an opinion is relatively speculative in nature also limits its probative value. For example, an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). Moreover, the fact that a veteran has received regular treatment from a physician or another doctor is certainly a consideration in determining the credibility of that doctor's opinions and conclusions. That notwithstanding, the Court has declined to adapt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467-471-3 (1993). Finally, while a veteran may provide competent continuity-of- symptomatology evidence, the Board is obligated to, and fully justified in, determining whether lay testimony is credible in and of itself. In doing so, the Board may weigh the absence of contemporaneous evidence against lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006) In the present case, the opinion of Dr. Baskins tends to support the veteran's contentions, as she was "suspicious" that his left shoulder injury may have been related to his military career. This opinion is of very limited probative value for two reasons, however. First, Dr. Baskins cited that the left shoulder injury "may" be related to the veteran's military career. As the Court noted in Obert v. Brown, a medical opinion expressed in terms of "may" is too speculative to establish such a causal relationship. Second, Dr. Baskins does not cite to a review of any past medical documentation, or the claims file itself, in rendering her opinion. Rather, it appears that her opinion was based solely on the veteran's own lay report. The Board has thus considered the credibility of the veteran's continuity-of-symptomatology contentions. The Board does find the veteran to be credible in terms of his history of being on a helicopter that underwent a crash landing involving severe movements, as indicated in service department documentation and the statement of the aforementioned U.S. Navy captain. That same captain, however, did not in any way suggest a specific injury to the left shoulder or any other body part of the veteran as a result of the crash landing. Moreover, the veteran's own continuity-of-symptomatology contentions conflict with the June 1970 separation examination report, which indicates normal upper extremities and reflects an absence of a relevant interval history. As such, as to the specific question of continuity of symptomatology of left shoulder symptoms since service, the veteran's lay contentions are not considered credible. Consequently, Dr. Baskins's opinion, based on those same contentions, is of markedly limited probative value and is substantially outweighed by the entirely unremarkable June 1970 separation examination report. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided). Moreover, while the veteran is competent to report an incident or symptoms, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion as to medical matters does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996). Finally, given the absence of evidence that is both competent and credible in support of the claim, a VA examination addressing the etiological questions raised in this case is not "necessary" pursuant to 38 U.S.C.A. § 5103A(d), as there exists no reasonable possibility that a VA examination would result in findings favorable to the veteran. See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Overall, the preponderance of the evidence is against the veteran's claim of service connection for a left shoulder disorder, and this claim must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial evaluation in excess of 30 percent for PTSD is denied. Entitlement to service connection for a left shoulder disorder is denied. ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs