Citation Nr: 1007369 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-40 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for disabilities of the lumbar, thoracic, and cervical segments of the spine. 2. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and/or depression. 3. Entitlement to service connection for Parkinson's disease. REPRESENTATION Appellant represented by: ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to March 1970. This appeal arises to the Board of Veterans' Appeals (Board) from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri, that, in pertinent part, denied service connection for post-traumatic stress disorder (PTSD), depression, and a back condition. This appeal also arises from a September 2006 RO rating decision that denied service connection for Parkinson's disease. In March 2008, the Board adjudicated several issues, but remanded the remaining three issues for development. Concerning service connection for Parkinson's disease; the Board requested that a statement of the case (SOC) be issued, pursuant to the holding of Manlincon v. West, 12 Vet. App. 238 (1999). Service connection for Parkinson's disease and for a psychiatric disorder including PTSD and/or depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's spine was normal at entry into active military service. 2. Any current cervical, thoracic, or lumbar spine disability has been disassociated from active service by competent medical evidence. CONCLUSION OF LAW A disability of the lumbar, thoracic, or cervical segment of the spine was not incurred in or aggravated by active military service, nor may it be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for 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 must notify the claimant 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This notice was provided in an August 2004 letter, prior to the unfavorable January 2005 rating decision. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the November 2004 notice did not address either the rating criteria or effective date provisions that are pertinent to the claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private clinical records. The claimant was afforded VA medical examinations. The claimant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In March 2008, the Board remanded the case for development. When remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). With respect to the claim for service connection for disorders of the cervical, thoracic, and lumbar segments of the spine, all remand orders have been complied with. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2009). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. Favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). Because the Veteran has earned the Combat Action Ribbon, he is deemed a veteran of combat and will be afforded the relaxed burden of proof accorded combat veterans. Concerning a claimed pre-existing spine disorder, no relevant abnormality was noted on an October 1968 pre-induction physical examination report. On an accompanying report of medical history questionnaire, the Veteran checked "no" to back trouble of any kind. Upon re-examination in December 1968, shortly after beginning active service, "lordosis" is noted as a defect. There is no medical record of any spine-related complaint during active service and the Veteran has not alleged that any such injury occurred. A March 1970 separation examination report is negative for any relevant complaint or finding. There is no report of medical history questionnaire to accompany the separation examination report, however. Thus, it is not known whether the Veteran reported any spine-related disorder upon discharge from active military service; however, the Veteran has not recalled that he ever reported such a disorder. In October 2009, a VA physician reviewed the pertinent medical history, examined the Veteran's spine, and offered these diagnoses: increased thoracic kyphosis with degenerative disc disease of the cervical and thoracic spine; magnetic resonance imaging evidence of facet hypertrophy in the lumbar spine; and, Parkinson's disease. The physician then dissociated any finding with military service, finding it "not likely" that a spine condition was related to any in-service disease or injury. The physician also reported that there was no basis to assume or conclude that any current spine condition pre-existed active military service. The physician explained that at entry into active service, lordosis or increased lordosis, if present, would have no symptom, nor would it cause a problem. The Veteran has not provided satisfactory lay evidence of a link between a current spine condition and active military service. In fact, during his October 2009 VA compensation examination, he recalled that he had no spine problem until after active military service and that he saw a chiropractor two years after active service. VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see Jandreau v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). The Veteran's opinion in this matter points to the fact that there was no spine injury during active service and to the fact that he first sought relevant treatment two years after active service. He has not alleged that an arthritic condition arose within a year of separation from active service. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for disabilities of the lumbar, thoracic, and cervical segments of the spine is therefore denied. ORDER Service connection for disabilities of the lumbar, thoracic, and cervical segments of the spine is denied. REMAND If a report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2009); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). Service connection for a psychiatric disorder, to PTSD and/or depression was the subject of the prior remand. That remand requests an examination to determine the etiology of PTSD and depression. Although the Board also noted a prior diagnosis of chronic dysthymic disorder, it failed to ask for the etiology of this. In November 2009, a VA clinical psychologist found neither depression nor PTSD, but did offer a diagnosis of dysthymic disorder. Unfortunately, the psychologist did not address the etiology of dysthymic disorder. Thus, the report must be returned for an addendum opinion. With respect to the claim of service connection for Parkinson's disease, the prior Board remand notes that the Veteran submitted a timely notice of disagreement (NOD) to the denial of service connection for Parkinson's, but no statement of the case (SOC) had been issued. The Board requested that an SOC be issued, in accordance with Manlincon v. West, 12 Vet. App. 238 (1999) (an unprocessed NOD should be remanded, rather than referred, to the RO). Since then, the Secretary for Veterans Affairs announced that Parkinson's disease will be added to a list of diseases associated with herbicide exposure. Because the Veteran is a Vietnam veteran, this will have a significant impact on his claim. However, VA has not yet revised its regulations governing diseases presumptively associated with herbicide exposure. Until that time, this issue must be held in abeyance. Accordingly, the case is REMANDED for the following action: 1. The AMC should return the claims file to the November 2009 examining psychologist for an addendum. The psychologist is asked to do the following: I. Note a review of the claims file in the report. II. Address whether it is at least as likely as not (50 percent or greater probability) that the dysthymic disorder, offered as a diagnosis in October 2009, is related to active military service. The psychologist should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the psychologist should state the reason. The Veteran may be reexamined if necessary. If the specified psychologist is unavailable, a qualified substitute may be used. 2. Following the above, the AMC should review all the relevant evidence and readjudicate the claim. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for examination without good cause may result in adverse consequences to the claim. 38 C.F.R. § 3.655(b) (2009). 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs