Citation Nr: 1004628 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 06-12 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a disability manifested by sexual dysfunction. 3. Entitlement to service connection for colonic diverticulitis. 4. Entitlement to service connection for nasal pterygium, also claimed as loss of vision. 5. Entitlement to service connection for a neck disability. 6. Entitlement to an increased initial evaluation for post traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 7. Entitlement to an increased initial evaluation for a healed esophageal ulcer, currently evaluated as noncompensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served in the Army National Guard, and had several periods of active duty and active duty for training, including from June 1986 to November 1986, January 1991 to July 1991, and May 2000 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied the Veteran's above claims of entitlement to service connection. The Board also points out that recently, the Veteran expressed concern that his individual unemployability claim, which was granted effective April 2005, was not considered "permanent and total". To the extent that the Veteran has raised an additional claim, this issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of headaches related to service. 2. The preponderance of the evidence of record is against a finding that the Veteran has a current disability manifested by sexual dysfunction related to service. 3. The preponderance of the evidence of record is against a finding that the Veteran's colonic diverticulitis is related to service. 4. The preponderance of the evidence of record is against a finding that the Veteran's nasal pterygium is related to service or was aggravated therin; the Veteran has a refractive error. 5. The Veteran is already service connected for a cervical strain; the preponderance of the evidence of record is against a finding that the Veteran has any other neck disability related to service. 6. In July 2008, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal as to the claim of entitlement to an increased initial evaluation for PTSD was requested. 7. In July 2008, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal as to the claim of entitlement to an increased initial evaluation for a healed esophageal ulcer was requested. CONCLUSIONS OF LAW 1. Headaches were not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. A disability manifested by sexual dysfunction was not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. Colonic diverticulitis was not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 4. A nasal pterygium or an eye disability was not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 5. A neck condition, other than the cervical strain for which the Veteran is already service connected, was not incurred in or aggravated by the Veteran's active duty military service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 6. The criteria for withdrawal of a Substantive Appeal by the appellant, as to the issues of increased initial evaluations for PTSD and a healed esophageal ulcer, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). Here, the duty to notify was satisfied by way of letters sent to the Veteran in August 2004, March 2006, November 2006, and July 2008. These documents informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the Veteran should provide. Therefore, the Board finds that any notice errors did not affect the essential fairness of this adjudication, and that it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. The Veteran was also specifically informed of the law as it pertains to disability evaluations and effective dates by the March 2006 and July 2008 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No prejudice has been alleged in the timing of this latter notice, and none is apparent from the record; and the claim was readjudicated during the course of this appeal. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a timing defect may be cured by the issuance of fully compliant notification followed by a re- adjudication of the claim). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA medical records and attempting to obtain private medical records, and providing the Veteran with several hearings. Consequently, the Board finds that the duty to notify and assist has been satisfied as to the issue being finally decided on this appeal. The Veteran and his representative contend that service connection is warranted for headaches, sexual dysfunction, colonic diverticulitis, a nasal pterygium claimed as loss of vision, and a neck condition. Specifically, the Veteran contends that he has all of these disabilities as a direct result of his service. The relevant evidence of record includes VA and private treatment records, and the reports of VA examinations. In order to establish service connection for a claimed disability, the facts must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(b). To prevail on the issue of service connection, there must be medical evidence of (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be presumed for certain chronic diseases which become manifest to a compensable degree within a prescribed period after discharge from service (one year), even though there is no evidence of such disease during the period of service, provided the Veteran had active service of 90 days or more. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2008). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). National Guard service generally includes periods of ACDUTRA and/or INACDUTRA. Basically, this refers to the two weeks of annual training that each National Guardsman must perform each year or in some cases, an initial period of training. ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c) (2008). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease), and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA or INACDUTRA is not appropriate. Under 38 C.F.R. § 3.303(c) (2009), congenital or developmental disorders and refractive errors of the eye are not diseases or injuries for the purpose of VA disability compensation. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert. Taking into account all relevant evidence, the Board finds that service connection is not warranted for headaches. In this regard, while the Veteran contends that he has chronic headaches as a result of service, there is no evidence of record showing that the Veteran was ever treated in service for headaches. Further, there is no evidence of record showing that the Veteran has a current diagnosis of any disability manifested by headaches. Specifically, the Veteran's private and VA treatment records show no treatment for, or complaints of, any headaches, and an October 2004 report of VA general medical examination did not find the Veteran to have any diagnosis related to headaches. Incumbent on a grant of service connection is a finding that the Veteran has the disability for which service connection is claimed. With no finding of treatment for, or complaints of, headaches or any disability manifested by headaches, either in service, or after service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Again taking into account all relevant evidence, the Board finds that service connection is not warranted for sexual dysfunction. While the Veteran contends that he has sexual dysfunction as a result of service, there is no evidence of record showing that the Veteran was ever treated in service for sexual dysfunction. Although the Veteran has claimed problems with sexual dysfunction, there is no evidence that he had any complaints of these until approximately 2004, over three years after his last period of active duty. Further, the evidence of record, including the Veteran's treatment records and an October 2004 report of VA examination, fail to show a diagnosis of any disability pertaining to sexual dysfunction. With no evidence of any complaints of, or treatment for, sexual dysfunction in service or for several years after service, and with no current diagnosis of sexual dysfunction, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Taking into account all relevant evidence, the Board finds that service connection is not warranted for colonic diverticulitis. In this regard, the Board notes that the Veteran's service medical records show no complaints of, or treatment for, colonic diverticulitis. The evidence of record does not show a diagnosis of colonic diverticulitis until July 2004, several years after the Veteran's last period of active duty service. While the Veteran is service connected for a healed esophageal ulcer, no evidence has been presented relating this diagnosis of colonic diverticulitis to service or any service connected disability. With no evidence of any complaints of, or treatment for, colonic diverticulitis in service or for several years after service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Taking into account all relevant evidence, the Board finds that service connection is not warranted for a nasal pterygium. In this regard, the Board notes that the Veteran was found to have a nasal pterygium in October 1985, prior to his entry into service, and there is no evidence of record showing that this condition was aggravated in service. An October 2004 report of VA eye examination noted that the Veteran's bilateral nasal pterygium caused his astigmatic refractive error. However, there is no evidence of record showing treatment for this, or an increase in severity of this condition, during service. Further, the Board points out, as above, that refractive error is not a disability for VA purposes. Therefore, with the evidence of record indicating that this condition existed prior to service and was not aggravated therein, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Finally, taking into account all relevant evidence, the Board finds that service connection is not warranted for a neck disability. In this regard, the Board points out that the Veteran is already service connected for a cervical strain, as part of his service connected back disability, and there is no evidence of record showing that he has any other neck disability. A VA spinal examination dated November 2004 examined the Veteran's spine, and while the Veteran's reported cervical strain was noted, the examiner also specifically indicated that no abnormalities or signs of cervical pain were noted on examination. With no finding of any disability other than the neck strain for which the Veteran is already service connected, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a neck condition. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and these claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Entitlement to an increased initial evaluation for PTSD and a healed esophageal ulcer. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2009). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2009). In a statement received at the Board in July 2008, it was indicated that the Veteran wished to withdraw the issues of entitlement to an increased initial evaluation for PTSD and a healed esophageal ulcer. Accordingly, the Board does not have jurisdiction to review these appeals, and they are therefore dismissed. ORDER Entitlement to service connection for headaches is denied. Entitlement to service connection for sexual dysfunction is denied. Entitlement to service connection for colonic diverticulitis is denied. Entitlement to service connection for nasal pterygium, also claimed as loss of vision is denied. Entitlement to service connection for a neck condition is denied. The appeal of the issue of entitlement to service connection for PTSD is dismissed. The appeal of the issue of entitlement to service connection for a healed esophageal ulcer is dismissed. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs