Citation Nr: 1007393 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-15 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a chronic cough. 2. Entitlement to service connection for a psychiatric disorder. 3. Entitlement to service connection for hyperthyroidism (also claimed as hand tremors). 4. Entitlement to service connection for a right hand condition. 5. Entitlement to service connection for partial amputation of the left index finger. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to November 1983. He was separated from service with a bad conduct discharge. In January 2001, the United States Army noted that the Veteran was honorably discharged on May 2, 1982, with immediate reenlistment on May 3, 1982. Later in 1982, the Veteran was convicted by a special court-martial for actions that occurred after his reenlistment. The Army determined in 2001 that the Veteran had a period of honorable service from June 1978 to May 2, 1982, and a period of service with a bad conduct discharge from May 3, 1982 until discharge in November 1983. In September 2004, a Regional Office (RO) of the United States Department of Veterans Affairs (VA) issued an administrative decision finding that the character of the Veteran's service from June 12, 1978, to May 2, 1982, was considered honorable, and that the character of his service from May 3, 1982, to November 9, 1983, was considered other than honorable. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the Waco, Texas RO. In that decision, the RO denied service connection for a chronic cough, a psychiatric disorder, hyperthyroidism claimed as hand tremors, and partial amputation of the left index finger. The Veteran has since relocated, and his case is being handled through the Atlanta, Georgia RO. In a July 2004 claim for VA benefits, the Veteran sought service connection and compensation for amputation of a finger on the left hand, and for a right hand condition. In a September 2004 statement, the Veteran stated that his hands were weak. In the October 2005 rating decision, the RO essentially changed the terminology of the Veteran's hand claim to being a claim for hyperthyroidism with hand tremors. The Veteran's service treatment records indicate that he underwent surgery in 1979 for tendon and ligament damage in his right thumb. As will be explained more fully below, the Board has restated the issues on the cover page to more accurately reflect the Veteran's claim. The issue of service connection for a psychiatric disorder 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. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. A chronic respiratory disorder was not shown in service or for many years thereafter, and is not shown by competent evidence to be related to any event in service. 2. A thyroid disorder was not shown in service or for many years thereafter, and is not shown by competent evidence to be related to any event in service. 3. The Veteran underwent surgery for repair of a right thumb ligament in 1979, with a residual scar being noted on current VA examination. 4. The Veteran sustained partial amputation of his left index finger in August 1982. 5. The character of the Veteran's service in the period from May 3, 1982, to November 9, 1983, is considered other than honorable. CONCLUSIONS OF LAW 1. A respiratory disorder manifested by a chronic cough was not incurred or aggravated in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Hyperthyroidism (also claimed as hand tremors) was not incurred or aggravated in service, nor may such be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 3. Status post right thumb ligament repair was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 4. Service connection for partial amputation of the left index finger is barred due to the character of service and type of discharge for the period of service during which the injury occurred. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Under certain circumstances, VA's duties to assist a claimant in substantiating a claim include providing a medical examination or obtaining a medical opinion. A medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent evidence to decide the claim, but contains evidence of a current disability, establishes that the veteran suffered an event, injury, or disease in service, and indicates that the claimed disability may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the RO provided VCAA notice in letters issued in September 2004, March 2005, and March 2006. In those letters, the RO advised the Veteran what information and evidence was needed to substantiate a claim for service connection. The RO informed the Veteran what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. A March 2006 letter also advised the Veteran how VA determines disability ratings and effective dates. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post service treatment records, a VA examination report, and the transcript of the hearing that the Veteran had in November 2009 before the undersigned Veterans Law Judge. The Veteran has not had a VA medical examination that addressed his claim regarding a chronic cough or hyperthyroidism. The competent and credible information and evidence of record, however, does not show that the Veteran suffered any event, injury, or disease related to his respiratory system or his thyroid during service. Therefore, the circumstances with respect to the Veteran's respiratory and hyperthyroid claim do not meet the conditions under 38 C.F.R. § 3.159(c)(4) that require obtaining a medical examination or opinion. As discussed above, the VCAA provisions have been considered and substantially complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran actively participated in the claims process by submitting written arguments and testifying at a hearing. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration on the merits of the matters that the Board is currently deciding. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(a). In the September 2004 administrative decision, the RO determined that the Veteran is eligible for benefits based on his first period of service, from June 12, 1978, to May 2, 1982. The RO concluded that the character of the Veteran's service in his second period of service, from May 3, 1982, to November 9, 1983, is a statutory bar to VA benefits based on that period. The Veteran has not appealed that decision. Therefore, service connection is possible for a disability incurred in or aggravated by the Veteran's first period of service. Service connection is barred for any disability incurred in or aggravated by the Veteran's second period of service. Chronic Cough The Veteran contends that his chronic cough is related to service. The Veteran's service treatment records are silent for complaints of cough or respiratory problems during either his first or second periods of service. Recent medical records reflect respiratory complaints. The claims file contains records of treatment of the Veteran in 2004 by private physician S. R. K., M.D. In September 2004, the Veteran informed Dr. K. that he had a history of asthma and bronchitis, and that he had a cough. Dr. K noted that the Veteran had shortness of breath that was relieved with the medication Albuterol. On chest x-rays, the lungs appeared clear and unremarkable. In December 2004, the Veteran sought VA outpatient medical treatment. He reported a number of problems, including pain in his back, hands, and knee, dizziness, weakness, tremors, nausea, abdominal cramping, diarrhea, and shortness of breath. In February 2005, a treating clinician listed diagnoses including chronic obstructive pulmonary disease (COPD) and asthma. It was noted that Albuterol was prescribed for the asthma. In a May 2005 statement, the Veteran indicated that he had shortness of breath. In October 2005, he wrote that his chronic cough was worse. In May 2005, the Veteran sought VA treatment for his medical problems, including hyperthyroidism. He also reported shortness of breath. The treating clinician did not find active dyspnea, cough, or other respiratory symptoms. In February 2006, the Veteran received VA inpatient and outpatient treatment for hyperthyroidism. He also reported episodic shortness of breath, dyspnea on exertion, and a cough. A list of his medications included Albuterol. In VA outpatient treatment in 2006 and 2007, clinicians continued asthma medication. In May 2006, the Veteran reported having dyspnea after walking one block. The treating clinician noted a nonproductive cough and wheezing. In the November 2009 Travel Board hearing, the Veteran reported that his chronic cough had been present for quite a while, but that he could not recall when it began. He stated that he believed that the cough was caused by something he breathed in during his service in Germany. He indicated that he did not smoke. He stated that he had probably been exposed to asbestos, because he had served in the military, but that he did not know where he might have been exposed. Recent medical evidence indicates that the Veteran reports respiratory symptoms such as coughing and dyspnea on exertion, and that clinicians prescribe him medication for asthma. There is no evidence, however, that any respiratory disorder was present during the Veteran's service. The Veteran's service treatment records are silent for respiratory complaints. He has indicated that he does not know when his chronic cough began. The earliest medical record of respiratory complaints is from 2004, more than twenty years after the Veteran's service. None of the assembled medical evidence indicates that current asthma or other respiratory disorders may be associated with any disease, injury, or event during the Veteran's service. The Veteran attributes his current cough to something he breathed in during his service in Germany. He has not explained what airborne substance he may have encountered. He also suggested that it was likely that he was exposed to asbestos during service, but indicated that he did not know where any exposure occurred. The Veteran has not been diagnosed with any asbestos-related disorder. His statements are not specific enough to warrant further development of his report of respiratory disease due to an unidentified exposure during service. There is no evidence that the Veteran had respiratory problems during service or for many years after service. There is no medical evidence of a link between current asthma or other respiratory problems and any event during service. Thus, the preponderance of the evidence is against service connection for a respiratory disorder manifested by a chronic cough. Hyperthyroidism Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and endocrinopathies become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The Veteran's service treatment records are silent for complaints or findings of any thyroid disorder during either his first or second periods of service. In December 1981 and January 1982, he reported weakness and cold sensitivity in his left hand. One clinician raised the possibility of carpal tunnel syndrome. The Veteran had physical therapy and by January 29, 1982 it was noted that the left hand weakness had resolved. Post service medical records show that the Veteran suffers from hyperthyroidism due to Grave's disease. Private treatment records dated in 2004 are the first indication of that diagnosis. A December 2004 VA treatment report noted the Veteran giving a history of diarrhea off and on for one year and for hand tremors and painful hands. A work-up for possible hyperthyroidism was ordered. A diagnosis of Grave's disease was identified. During his hearing, the Veteran stated that he believes that stomach problems he had in service were actually hyperthyroidism. However, as a lay person, the Veteran is not competent to diagnose his symptoms as related to a thyroid problem, as such requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In any event, his service treatment records reflect no complaints concerning his stomach during either period of service, and the VA treatment records reflect complaints of chronic diarrhea did not begin until approximately 2004, more than 20 years after discharge from service. Thus, the Board finds that the medical records and the Veteran's own statements to treatment providers regarding the onset of symptoms are more probative than the Veteran's current contention as to the onset of thyroid symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). There is no medical opinion of record suggesting a relationship between his hyperthyroidism and service. Thus, the preponderance of the evidence is against the claim and service connection is denied. Right Hand Condition The Veteran specifically claimed service connection for a right hand condition. However, based on the medical evidence, the RO recharacterized the claim for a hand condition as hyperthyroidism claimed as hand tremors. As noted in the Introduction, the Board finds that separate consideration of the right hand issue is warranted. Service treatment records from the Veteran's first period of service, from June 1978 to May 2, 1982, reflect reports of symptoms affecting the hands. In September 1980, the Veteran reported pain in his right thumb, on which he had undergone surgery in 1979. He stated that cold weather caused that thumb to become paralyzed. In a VA medical examination in April 2006, the examiner addressed the condition of the Veteran's hands. The examiner noted the Veteran's history of surgery on the right thumb as well as the Veteran's current complaints of pain in the base of the thumb. Physical examination revealed a 4 cm well healed surgical scar at the base of the right thumb. There was normal sensation, color, temperature, and turgor in the hand. The examiner diagnosed status post ligament repair to the right thumb. As the evidence indicates that the Veteran underwent surgical repair of the right thumb during his honorable period of active duty, and has current residuals of that surgery, service connection for status post right thumb ligament repair is warranted. Left Index Finger The Veteran's service treatment records show that he sustained injury of his left index finger on August 20, 1982. The injury, from a human bite, consisted of amputation of the tip of that finger. As noted above, the Veteran's service has been divided into two periods, with an honorable discharge from the first period of service, June 12, 1978, to May 2, 1982, and an other than honorable discharge from the second period, May 3, 1982, to November 9, 1983. The bad conduct status was based on a September 1982 conviction of the Veteran by special court-martial, on charges including the possession and sale of marijuana on or about May 18, 1982. The character of service of the second period of service is a statutory bar to VA benefits based on that period. Service connection is barred for any disability incurred or aggravated in that period. The Veteran did not file a notice of disagreement within one year after the September 2004 RO decision regarding his eligibility to VA benefits for the other than honorable period of service. The partial amputation of the Veteran's left index finger occurred during his second period of service. Service connection, and payment of benefits, for disability incurred during that period is barred due to the established character of service and type of discharge for that period. Therefore, the Board must deny service connection for disability residual to that finger injury. 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12(a). ORDER Entitlement to service connection for a respiratory disorder manifested by a chronic cough is denied. Entitlement to service connection for hyperthyroidism (also claimed as hand tremors) is denied. Entitlement to service connection for status post right thumb ligament repair is granted. Entitlement to service connection for partial amputation of the left index finger is denied. REMAND The claims file does not contain treatment records from two professionals from whom Veteran has reported receiving treatment that addressed his mental health concerns. The Board will remand the psychiatric disorder claim to obtain from the Veteran more detailed identification of the clinicians, and to seek records of their treatment of the Veteran. In a March 2005 statement, the Veteran reported post-service private treatment for his nerves. He stated that he saw Dr. Hinighter, in Georgia, in approximately August 1989. In his November 2009 hearing, the Veteran reported that he was in treatment with Dr. Howell, in Savannah, Georgia. The Veteran stated that Dr. Howell indicated that the Veteran's nervousness was related to the Veteran's service and to the Veteran's hyperthyroidism. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide completed authorization forms to permit VA to obtain treatment records from Dr. Hinighter, whom he reports seeing in Georgia in 1989, and for Dr. Howell, whom he reports seeing recently in Savannah, Georgia. After securing the necessary release, the RO/AMC should obtain these records. 2. After completion of the above, review the expanded record and determine if the remanded claim can be granted. If any the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. 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. 2009). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs