Citation Nr: 1000099 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-03 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for dementia, Alzheimer's type. 4. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran had verified active duty from January 1945 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran service connection for PTSD, hypertension, dementia, and coronary artery disease. The Veteran subsequently initiated and perfected appeals of these rating determinations. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Competent evidence has not been presented of a current diagnosis of PTSD, or of a nexus between PTSD or any current psychiatric disability, and military service, or any disease, injury, or incident therein. 2. Competent evidence has not been presented establishing onset of hypertension during military service, or within a year thereafter. 3. Competent evidence has not been presented establishing onset of dementia, Alzheimer's type, during military service. 4. Competent evidence has not been presented establishing onset of coronary artery disease during military service, or within a year thereafter. CONCLUSIONS OF LAW 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). 2. Entitlement to service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). 3. Entitlement to service connection for dementia, to include Alzheimer's type, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). 4. Entitlement to service connection for coronary artery disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual History The Veteran originally served with the Recognized Guerrillas beginning in January 1945, and service treatment records from January until October 1945 are not available. In October 1945, he was afforded physical examination for entrance into regular military service. He was noted to have a systolic heart murmur since age 1. For this reason, he was found to be unfit for military service due to a mitral insufficiency. In October 1945, the Veteran was hospitalized for diarrhea and acute dyspepsia. He was given treatment and medication, and was discharged after three days. In November 1945, he was examined for service separation, at which time no current abnormalities were noted. Service personnel records confirm the Veteran served as part of the medical corps during his military service. Cardiac catheterization was afforded the Veteran at a private facility in May 2002. He had previously been diagnosed with angina pectoris and abnormal thallium. A September 2004 statement was received from G.D.M., M.D., indicating he treated the Veteran in February 2000, and diagnosed generalized anxiety disorder. Also in September 2004, a statement was received from R.A.C, M.D., who stated he treated the Veteran for hypertension in December 1999, when his blood pressure reading was 170/100. Finally, M.W.C. M.D., also filed a September 2004 statement detailing the Veteran's recent medical history. Dr. C. stated the Veteran had angina with moderate right coronary artery stenosis, post-operative cardiac catheterization in May 2002. Other diagnoses included hypertension and hyperlipidemia, and he was receiving ongoing treatment for these disabilities. In a December 2004 written statement, N.D.R., M.D., stated he had treated the Veteran since August 2001 for hypertension, aortic stenosis, insomnia, osteoarthritis, peripheral vascular disease, and a prior history of obstructive sleep apnea. For these disabilities, the Veteran has been prescribed medication and afforded routine follow-up. Subsequent treatment records from Dr. R. confirm the Veteran has also been treated for coronary artery disease and hypertension by Dr. R. Dr. R.A.C. filed a second statement in May 2005, indicating he had previously treated the Veteran from 1985 to 1990. He first diagnosed hypertension in 1985, and angina in 1986. In June 2005, G.A.D. filed an affidavit stating he served with the Veteran in 1945, and at that time, he exhibited signs of "stress and trauma." An August 2005 statement was received from B.P.D., M.D., who diagnosed the Veteran with anxiety and insomnia secondary to anxiety. In October 2005, P.J.D., M.D., diagnosed depression, hypertension, and renal insufficiency, and a November 2005 statement from A.C.C., M.D. confirmed a diagnosis of Alzheimer's disease. The Veteran was afforded VA medical examination in January 2006. His claims file was reviewed by the examiner, a VA physician and cardiologist, in conjunction with the examination. The examiner noted the Veteran had been diagnosed with a mitral insufficiency many years prior during military service, rendering him unfit for such service, but on physical examination the examiner could find nothing suggesting mitral regurgitation. The examiner found it possible that this was a misdiagnosis, because it would be "very unusual to have significant mitral regurgitation [. . .] and to never have complications." While the examiner confirmed current ischemic heart disease and coronary artery disease, with mild aortic and left carotid stenosis, he found no connection between these disorders and military service. II. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In June 2005 and October 2005 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Admittedly, neither of these letters provided him with the general criteria for the assignment of an effective date and initial rating; however, because the Veteran has not been granted service connection for any disability claimed herein, any question regarding the effective dates and initial ratings to be assigned is essentially moot, and any failure of notice therein can be no more than harmless error. Id. The Board next notes that, in the present case, complete initial notice was issued prior to the January 2006 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded a VA medical examination in January 2006. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board notes that no medical examination has been conducted and/or medical opinion obtained with respect to the Veteran's service connection claims for dementia and PTSD. However, the Board finds that the record, which does not reflect competent evidence showing a nexus between service and the disorders at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4) (2009). As outlined in McLendon v. Nicholson [20 Vet. App. 79 (2006)], in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. As will be discussed below, there is no valid diagnosis of PTSD, there was no notation of any psychiatric disability during service or within a year of discharge. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claims at this time is warranted. III. Analysis Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be awarded for certain disabilities, such as psychoses, hypertension, valvular heart disease, and arteriosclerosis, which manifest to a compensable degree within a statutorily- prescribed period of time. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. During the pendency of this appeal, 38 C.F.R. § 3.384 was added to further define "psychoses" as found at 38 C.F.R. § 3.309. 38 C.F.R. § 3.384 (effective August 28, 2006). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. PTSD and Psychiatric Disorders The Veteran contends he was exposed to combat during military service, and while serving as a medic, he handled dead and wounded soldiers. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the Veteran engaged in "combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If the VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat- related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998) (wherein the U.S. Court of Appeals for Veterans Claims (Court) stated, "If the Veteran engaged in combat, his lay testimony regarding stressors will be accepted as conclusive evidence of the presence of in-service stressors"). If, however, the Veteran was not engaged in combat, he must introduce corroborative evidence of his claimed in-service stressors. In the present case, the Veteran's DD-214 is negative for award of the Combat Infantryman's Badge, Purple Heart Medal, or similar award indicative of participation of combat; thus, there must be credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection. See Cohen v. Brown, 10 Vet. App. 128 (1997). Central to any service connection claim is a current diagnosis of the claimed disorder. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where, as here, the overall evidence of record fails to support a diagnosis of the claimed condition at any time during the claim, that holding would not be applicable. In the present case, while the Veteran has been diagnosed with depression, generalized anxiety disorder, and insomnia, the medical evidence of record does not reflect a diagnosis of PTSD. In the absence of such a diagnosis, service connection for PTSD must be denied. See Gilpin, supra. In so deciding, the Board is cognizant of the recent holding of the Court in Clemons v. Shinseki [23 Vet. App. 1 (2009)]. In Clemons, the Court held that a claim for service connection may include any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the secretary obtains in support of the claim. Clemons, 23 Vet. App. at 5. Applying Clemons to the present case, the record does confirm several current diagnoses of psychiatric disabilities other than PTSD. Nevertheless, while the Veteran has been afforded such diagnoses as generalized anxiety disorder and depression, these are not psychoses within the meaning of 38 C.F.R. § 3.384. Moreover, no such diagnosis appears within a year of discharge, and no examiner has suggested that these disabilities began during military service, or are related to an injury or disease in service. For these reasons, the Board finds the preponderance of the evidence is against the award of service connection for PTSD, or any other psychiatric disability. The Veteran himself has alleged that he has a current diagnosis of PTSD due to stressors experienced during military service. He has also submitted the statement of another service member who allegedly served with him in 1945, and indicates the Veteran exhibited stress and trauma during military service. However, as laypersons, they are not capable of making medical conclusions; thus, these statements regarding causation are not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's or his buddy's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for PTSD, as a current diagnosis of such a disability, or a nexus linking PTSD to an in-service stressor, has not been presented. Likewise, there is no currently diagnosed psychosis, and no currently diagnosed psychiatric disability was noted in service, and competent evidence does not link any current psychiatric disability to military service, to include a disease, injury, or incident therein. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Hypertension and coronary artery disease The Veteran was afforded physical examination in October 1945, at which time he was noted to have a mitral insufficiency, and was found unfit for military service. More recently, he has presented private medical records confirming current diagnoses of hypertension, ischemic heart disease, cardiac stenosis, angina, and coronary artery disease. A cardiac catheterization was afforded him in May 2002. Thus, the Board concedes current diagnoses both of hypertension and coronary artery disease. Nevertheless, competent evidence of record does not indicate these disabilities were incurred during military service, or manifested to a compensable degree within a year thereafter. On VA medical examination in January 2006, the Veteran was examined by a VA physician and cardiologist, and his claims file was reviewed. The examiner noted the Veteran had been diagnosed with a mitral insufficiency during military service, rendering him unfit for service, but on physical examination the examiner could find nothing suggesting mitral regurgitation. The examiner found it possible this was a misdiagnosis, because it would be "very unusual to have significant mitral regurgitation [. . .] and to never have complications." While the examiner confirmed current hypertension and ischemic heart disease and coronary artery disease, with mild aortic and left carotid stenosis, he found no connection between these disorders and military service. The Board also observes that the Veteran's private medical records first reflect a diagnoses of hypertension and/or coronary artery disease no earlier than 1984, 40 years after service separation. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, no medical expert has suggested the Veteran's hypertension or coronary artery disease began during military service or within a year thereafter. In the absence of competent evidence of a nexus between current diagnoses of hypertension and coronary artery disease, and a disease or injury incurred during military service or within a year thereafter, service connection for hypertension and coronary artery disease must be denied. The Veteran himself has alleged that his hypertension and coronary artery disease began during military service, or are related therein. However, as a layperson, he is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu, 2 Vet. App. at 495. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau, 492 F.3d 1372; see also Buchanan, 451 F.3d 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, hypertension and coronary artery disease are complex disorders which requires specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for hypertension or coronary artery disease, as these disabilities did not manifest until many years after military service, and have not been shown to have been incurred during military service, or within a year thereafter. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d 1361; Gilbert, 1 Vet. App. at 55-57. Dementia As an initial matter, the Board notes Alzheimer's disease was confirmed by a 2005 note, discussed above, received from Dr. A.C.C. In the absence of evidence to the contrary, the Board finds the evidence sufficient to establish a current diagnosis of Alzheimer's disease and/or dementia, and such a diagnosis is conceded by the Board. Nevertheless, the Board finds no basis in the record to award service connection for dementia and/or Alzheimer's disease, as such a disability was not incurred during military service, or resulted from a disease or injury incurred therein. The earliest diagnosis of Alzheimer's disease dates to 2005, over 50 years subsequent to service. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson, 230 F.3d 1330. While the Veteran's service treatment records are sparse, the records available are negative for treatment of any type of psychiatric, neurological, or cognitive disorder. Additionally, while the Veteran has been treated by several private physicians in the recent past for his dementia, none have suggested the Veteran incurred dementia during military service, or that a nexus exists between such service and his current diagnosis many years later. In the absence of such evidence, service connection for dementia, Alzheimer's type, must be denied. The Veteran himself contends that his dementia began during, or is otherwise related to, military service. However, as a layperson, he is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. Espiritu, 2 Vet. App. at 495. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau, 492 F.3d 1372; see also Buchanan, 451 F.3d 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, dementia and Alzheimer's disease are complex disorders which require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent medical evidence. In conclusion, the preponderance of the evidence is against the award of service connection for dementia, Alzheimer's type, as such a disability was not incurred during military service, or is related to any incident therein. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d 1361; Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for acquired psychiatric disability, to include PTSD, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for dementia, Alzheimer's type, is denied. ______________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs