Citation Nr: 1008917 Decision Date: 03/09/10 Archive Date: 03/17/10 DOCKET NO. 08-21 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for bilateral ear pain. 2. Entitlement to service connection for bilateral tinnitus. 3. Entitlement to service connection for bilateral headaches. 4. Entitlement to service connection for arteriostenosis. 5. Entitlement to service connection for a left above-the- knee amputation. 6. Entitlement to service connection for a gastrointestinal disability, including a perforated duodenal ulcer. 7. Entitlement to service connection for a respiratory disability, including a lung nodule/lung scarring. 8. Entitlement to service connection for depression. 9. Entitlement to service connection for peripheral vascular disease of the right leg. 10. Entitlement to service connection for hematuria (claimed as blood in the urine). 11. Entitlement to an initial compensable evaluation for an abdominal surgical scar, status post exploratory laporotomy for closure of a perforated duodenal ulcer. 12. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The Veteran had active service from August 1971 to August 1974. These claims come before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford (Newington), Connecticut. During the course of this appeal, the Veteran requested a hearing before the Board at the RO. On the date of the scheduled hearing, however, the Veteran failed to report. Inasmuch as he did not seek a postponement of the hearing, the Board deems his hearing request withdrawn under 38 C.F.R. § 20.704(d) (2009). The Board remanded all but one of these claims to the RO for additional action in February 2009. In the INTRODUCTION section of its REMAND, it discussed a claim of entitlement to an initial compensable evaluation for an abdominal surgical scar, status post exploratory laporotomy for closure of a perforated duodenal ulcer. Due to the reason discussed in the REMAND portion of this decision, below, the Board now includes this claim as a question on appeal. It addresses this claim as well as the claims of entitlement to service connection for bilateral ear pain, bilateral tinnitus, bilateral headaches, a gastrointestinal disability, including a perforated duodenal ulcer, a respiratory disability, including a lung nodule/lung scarring, and depression and entitlement to a TDIU in the REMAND portion of this decision and REMANDS these claims to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Arteriostenosis is not related to the Veteran's active service. 2. A left above-the-knee amputation is not related to the Veteran's active service. 3. Peripheral vascular disease of the right leg is not related to the Veteran's active service. 4. The Veteran does not currently have a disability manifested by hematuria. CONCLUSIONS OF LAW 1. Arteriostenosis was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. A left above-the-knee amputation was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 3. Peripheral vascular disease of the right leg was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 4. Hematuria (claimed as blood in the urine) was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist 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 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). A. Duty to Notify Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) 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) (West 2002); C.F.R. § 3.159(b)(1) (2009). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). Where notice was not mandated at the time of the initial decision, it is not error to provide remedial notice after such initial decision. Id. at 120, 122-24. The RO provided the Veteran VCAA notice on the claims being decided by letter dated April 2007, before initially deciding those claims in a rating decision dated August 2007. The timing of such notice reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The April 2007, letter told the Veteran what evidence was needed to substantiate a claim for service connection. The letter also provided the Veteran with all necessary information on disability ratings and effective dates. In addition, the RO identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified the source(s) thereof, but that, ultimately, it was his responsibility to ensure VA's receipt of all requested evidence. The RO advised the Veteran to sign the enclosed forms authorizing the release of his treatment records if he wished VA to obtain them on his behalf. B. Duty to Assist The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claims, including service and post-service treatment records and information from the Social Security Administration (SSA). Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The RO did not provide an examination or obtain a medical opinion with regard to the claims being decided; however, such development is not necessary to decide these claims. Cf. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). As explained below, there is no competent evidence of record establishing that the Veteran has current hematuria, or that current peripheral vascular disease or above the knee amputation may be related to a disease or injury in service. II. Analysis The issues before the Board include whether the Veteran is entitled to service connection for arteriostenosis, a left above-the-knee amputation, peripheral vascular disease of the right leg and hematuria. According to written statements the Veteran submitted during the course of this appeal, his overall health began to deteriorate during service, when he underwent surgery for a perforated ulcer. Allegedly, thereafter, he could not gain weight and felt constant pressure and stress, and developed depression, which he tried to alleviate by smoking. The Veteran contends that, by the 1990s, his health had deteriorated to such an extent it was affecting his lower extremities and he was diagnosed with arteriostenosis and peripheral vascular disease. He asserts that, since then, he has received regular treatment for poor circulation in his lower extremities and has undergone two amputations of his left lower extremity, one below the knee and one above the knee. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection will be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain conditions, including arteriosclerosis and arthritis, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, one such condition became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Post-service medical documents, including VA and private treatment records and information from SSA, confirm that the Veteran has arteriostenosis and peripheral vascular disease and an amputated left leg at above the knee. The question is thus whether these disabilities are related to his active service. According to the Veteran's service treatment records, the Veteran did not report or receive treatment for any complaints associated with his legs and there were no findings of arteriostenosis or peripheral vascular disease. In 1973, however, while serving in Germany, he underwent surgery for a perforated duodenal ulcer. Thereafter, his surgical scar began to heal, but testing revealed an elevated hemocrit value of 53-55 percent (normal being 47 percent). The Veteran's surgeon recommended further consultation with a specialist, which does not appear to have occurred. During the remainder of service, no medical professional attributed the abnormal finding to a particular diagnosis. In support of his assertion that the in-service surgery lead to a decline in his health, the Veteran has submitted multiple lay statements, including from his spouse, aunt (who lived in Germany when the Veteran underwent surgery for a perforated ulcer) and E.C. and J.G. (friends since the 1980s); which confirm that he has had health problems since being stationed in Germany. Although the lay statements provide competent evidence of a general decline in the Veteran's health after the 1973 surgery, they do not report any symptomatology of hematuria, peripheral vascular disease or any other condition leading to above the knee amputation; in service or in the years immediately following service. The Veteran's post-service medical documents do not establish that his leg problems initially manifested during, or were incurred in, service. Medical professionals first diagnosed a disability affecting his lower extremities, or more specifically, peripheral vascular disease, in 1994. Thereafter, other medical professionals noted various abnormalities of the lower extremities, including severe circulatory disturbances, and testing revealed stenosis of arteries in the lower extremities. Accordingly, the evidence is against a finding of a continuity of symptomatology. In January 2006, medical professionals amputated the Veteran's left leg below the knee, but the wound did not heal. In May 2006, medical professionals revised the previous surgery and amputated the Veteran's left leg above the knee. Since then, the Veteran has received significant treatment for residuals of the surgery and various abnormalities in the lower extremities. During treatment visits, medical professionals have stressed the importance of quitting smoking (Veteran is a habitual smoker who now smokes one and a half packs daily, but previously smoked more frequently), but have never related the arteriostenosis, amputation or peripheral vascular disease to the Veteran's active service. In addition, although they occasionally noted abnormalities on blood and urine testing, they never diagnosed a disability manifesting as blood in the urine (hematuria). To prevail in a claim for service connection, a claimant must submit competent evidence establishing that he has a current disability resulting from service. In this case, even the Veteran does not assert that he has a disability manifested by hematuria. There is no medical evidence of hematuria, and it would generally require laboratory testing to say that the Veteran has this condition. There is no medical evidence of hematuria. Assuming arguendo that the Veteran could observe blood in his urine, he has not reported such observations. The Veteran does, however, relate the arteriostenosis, amputation and peripheral vascular disease to his active service, but his assertions, alone, may not be considered competent evidence of a nexus. It would require medical expertise to say that the conditions first shown many years after service were the result of a disease or injury in service. Such assertions may be considered as such only when: (1) the layperson is competent to identify a medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example that a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may not determine that lay evidence lacks credibility based merely on the absence of contemporaneous medical evidence). The Veteran appears to contend that the claimed disabilities are, at least in part, the result of smoking that is result of stresses experienced in service. Service connection, however, is precluded for disability that is the result of the use of tobacco products in service. 38 U.S.C.A. § 1103 (West 2002). The Board finds that the Veteran does not currently have a disability manifesting as hematuria. Considering the Veteran' service treatment records, which fail to mention any of the other conditions at issue in this appeal, the fact that he has not reported such symptoms in service or in the years after service, that the Veteran was first diagnosed with these conditions in the 1990s, decades after service, and that no medical professional has linked the current disabilities to service; the Board finds that arteriostenosis, an above-the-knee-amputation and peripheral vascular disease are not related to active service. Based on this finding, the Board concludes that such conditions were not incurred in or aggravated by active service. A preponderance of the evidence is against this claim. The benefit-of-the-doubt rule is thus not for application. ORDER Service connection for arteriostenosis is denied. Service connection for a left above-the-knee amputation is denied. Service connection for peripheral vascular disease of the right leg is denied. Service connection for hematuria (or blood in the urine) is denied. REMAND The Veteran claims entitlement to service connection for bilateral ear pain, bilateral tinnitus, bilateral headaches, a gastrointestinal disability, including a perforated duodenal ulcer, a respiratory disability, including a lung nodule/lung scarring, and depression, entitlement to an initial compensable evaluation for an abdominal surgical scar, status post exploratory laporotomy for closure of a perforated duodenal ulcer, and entitlement to a TDIU. Additional action is necessary before the Board decides these claims. First, under the VCAA, VA is required to afford the Veteran a VA examination when there is insufficient information of record to make a decision on a claim, there is competent evidence in the claims file that the claimant has a current disability or signs and symptoms of a current disability, and the record indicates that the disability or signs and symptoms of the disability may be associated with active service. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (holding that any evidence of a link between a current disability and active service must be competent). The threshold for finding a suggested link between a current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. at 83. VA is required to afford the Veteran a VA examination in support of his claims for service connection for bilateral ear pain, tinnitus and headaches, gastrointestinal and respiratory disabilities and depression because the evidence meets the requirements of 38 U.S.C.A. § 5103A(d). The Veteran's statements report that he has ringing and pain in his ears and head pain. Post-service medical evidence confirms that he has gastrointestinal and respiratory disabilities and depression. According to the Veteran's service treatment records, he received treatment for gastrointestinal and respiratory complaints, including a perforated ulcer, during service. According to the statement of the Veteran's aunt, she observed that he became depressed after undergoing in-service surgery for the perforated ulcer. According to multiple statements of the Veteran, although at some point he began to feel better, such improvement was temporary and he now has chronic depression. According to the same statements, he developed ringing and painful ears, headaches and lung abnormalities in-service secondary to his military occupational duties as a vehicle mechanic in a motor pool. Allegedly, these duties exposed him to a significant amount of noise (without the benefit of hearing protection), brake pad dust, asbestos, which covered the brakes, solvents and chemicals and required him to work in an enclosed building with no ventilation. To date, VA has not obtained a medical opinion addressing whether the Veteran's bilateral ear pain, tinnitus, headaches, gastrointestinal and respiratory disabilities and depression are related to his active service, including documented in-service gastrointestinal and respiratory treatment and hearing loss, and/or his duties as a vehicle mechanic, which his DD Form 214 confirms was his military occupational specialty. The Veteran's claim for a TDIU is inextricably intertwined with the Veteran's claims for service connection. The Board thus defers a decision on this claim until the RO completes the development requested in this REMAND. Second, in a May 2008 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran service connection for an abdominal surgical scar, status post exploratory laporotomy for closure of perforated duodenal ulcer, and assigned that scar an initial compensable evaluation. Thereafter, in a VA Form 9 (Appeal to Board of Veterans' Appeals) dated April 2008, the Veteran expressed disagreement with the evaluation assigned. To date, the RO has not issued a statement of the case in response. The Board is required to remand this issue so that the AOJ can provide a statement of the case. 38 C.F.R. §§ 19.9, 20.200, 20.201 (2009); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Based on the foregoing, this case is REMANDED for the following action : 1. Afford the Veteran a VA examination in support of his claims for service connection for bilateral ear pain, tinnitus and headaches, gastrointestinal and respiratory disabilities and depression. Provide the examiner with the Veteran's claims file for review and ask the examiner to confirm in his written report that he conducted such a review. Following a comprehensive evaluation, during which all indicated studies are conducted, the examiner should: a) indicate whether the Veteran has tinnitus, headaches, a disability manifested by ear pain, a gastrointestinal disability, a respiratory disability and/or depression; b) for each disability shown to exist, opine whether it is at least as likely as not related to the Veteran's active service, including documented in-service gastrointestinal and respiratory complaints and treatment, hearing loss, alleged ringing in the ears, and/or alleged exposure to excessive noise, brake pad dust, asbestos, solvents and chemicals; c) specifically note all residuals of the Veteran's perforated duodenal ulcer and surgery therefor; d) opine whether all disabilities shown to be related to active service and the Veteran's service-connected abdominal scar collectively render the Veteran unable to secure and follow a substantially gainful occupation; e) provide rationale, with specific references to the record, for the opinions offered; and f) if an opinion cannot be provided without resort to speculation, discuss why such is the case. 2. Provide the Veteran a statement of the case pertaining to the issue of entitlement to an initial compensable evaluation for an abdominal surgical scar, status post exploratory laporotomy for closure of a perforated duodenal ulcer. Only if the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, should this issue be certified to the Board for appellate review. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. The Veteran need take no action unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). ________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs