Citation Nr: 1034534 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 09-22 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to special monthly pension benefits. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability. 3. Entitlement to service connection for a circulatory condition of the lower extremities. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from August 1946 to November 1946, and from August 1950 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions in February 2008, of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for special monthly pension, based upon the need for aid and attendance or by reason of being housebound. The appeal also comes from an October 2008 rating decision that denied the Veteran's application to reopen the claim of service connection for a psychiatric disorder, and denied the claim of service connection for circulatory condition of the lower extremities. Additional evidence was received after the issuance of the supplemental statement of the case in June 2009, without a waiver of the right to have the additional evidence reviewed by the RO. As the additional evidence is essentially cumulative of evidence already of record, that is, it does not have a bearing on the issues on appeal, referral of the evidence to the RO 38 C.F.R. § 20.1304(c) is not required. 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. The Veteran was born in 1927; he had more than 90 days of active service during a period of war, and has a combined disability evaluation of 80 percent for pension purposes. 2. In a February 1978 decision, the Board denied service connection for an acquired psychiatric disorder. 3. In a rating decision in November 2001, the RO denied service connection for an psychiatric condition claimed as PTSD. 4. The additional evidence presented since the rating decision of November 2001, denying the claim of service connection for an acquired psychiatric condition, to include PTSD and dysthymic disorder, is either cumulative of evidence previously considered, or when considered with previous evidence does not relate to an unestablished fact necessary to substantiate the claim, and the evidence does not raise a reasonable possibility of substantiating the claim. 5. A circulatory condition of the lower extremities was not affirmatively shown to have been present during service; and the current circulatory condition of the lower extremities, first diagnosed after service, is unrelated to a disease, injury, or event of service origin. CONCLUSIONS OF LAW 1. The criteria for a special monthly pension for housebound benefits have been met. 38 U.S.C.A. §§ 1502, 1513, 1521, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352 (2009); Hartness v. Nicholson, 20 Vet. App. 216 (2006). 2. The decision by the Board in February 1978, denying service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7104(b) (West 2002). 3. The rating decision by the RO in November 2001, denying the claim of service connection for a psychiatric disorder, to include PTSD, became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104 (2009). 4. New and material evidence has not been presented to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 5. A circulatory condition of the lower extremities was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). Here VA satisfied the duty to notify by means of correspondence dated in December 2007, July 2008, and August 2008; rating decisions in February 2008, and December 2008; and a statement of the case in June 2009. Those documents discussed specific evidence, particular legal requirements applicable to the claims herein decided, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the Veteran with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the final adjudication in the June 2009 statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Board acknowledges that the evidence shows that Veteran was awarded disability benefits from the Social Security Administration (SSA) in 1976. The Veteran, however, is now 83 years old. Hence, under 42 U.S.C. § 402, his SSA disability award was automatically converted to "old age" benefits when he turned 65. In light of that fact, and the fact that the Social Security's Document Retention Schedule requires the destruction of any disability records when a beneficiary turns 72, there is no duty to secure any records from that agency. Therefore, the Board has determined that a remand for the purpose of obtaining SSA records is not warranted. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claims. With regards to the claim of special monthly pension, the Veteran was afforded VA examinations. With regards to the claim of service connection for a bilateral lower extremity circulatory condition, the competent evidence of record does not show that any such condition was incurred in or aggravated by service, and VA is not required to provide the Veteran with a medical examination absent a showing by the Veteran of a causal connection between the claimed disability and service. A VA examination is not required in the absence of competent evidence of a current diagnosed disability. For these reasons, development for a VA medical examination is not warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). On the application to reopen the claim of service connection for an acquired psychiatric disorder, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented, and that is not the case here. 38 C.F.R. § 3.159(c)(4)(iii). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claim, and therefore the error was harmless). Entitlement to Special Monthly Pension The Veteran contends that he is entitled to special monthly pension given his age and cognitive disorder. Under 38 U.S.C.A. § 1513(a), as combined with 38 U.S.C.A. § 1521(a) and (e), a special monthly pension may be paid to a Veteran who is 65 years of age or older, meets the service requirement of 38 U.S.C.A. § 1521 and possesses a minimum disability rating of 60 percent. See Hartness v. Nicholson, 20 Vet. App. 216 (2006). Under 38 U.S.C.A. § 1521(j), a Veteran must have served in the active military, naval, or air service (1) for ninety days or more during a period of war; (2) during a period of war and been discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or, (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. In the present case, the appellant meets the service requirements of 38 U.S.C.A. § 1521(j). Here, the Board notes that the appellant's service records indicate that he served on active duty from August 1946 to November 1946, and from August 1950 to December 1957, including service in World War II and the Korean Conflict. 38 C.F.R. § 3.2(d). Having reached this determination, the Board must next consider whether the appellant meets the substantive criteria for special monthly pension, specifically 38 U.S.C.A. § 1521(e). Normally, this pension benefit is only applicable to Veterans rated as permanently and totally disabled who also have a disability ratable at 60 percent or higher or are considered to be permanently housebound. However, in Hartness, the Court indicated that the intersection of 38 U.S.C.A. § 1513(a) and 38 U.S.C.A. § 1521 result in a special monthly pension being applicable to a Veteran with the requisite service if, in addition to being at least 65 years old, he or she had at least a 60 percent rating, or, was considered permanently housebound as defined under 38 U.S.C.A. § 1502(c) without the showing of a permanent and total disability. The evidence of record demonstrates that the appellant is approximately 83 years of age. The appellant's DD-214 indicates that the appellant was born on January [redacted], 1927. 38 U.S.C.A. § 1513(a) prescribes that Veterans 65 years of age and older who meet the initial service requirements of 38 U.S.C.A. § 1521(j) are entitled to pension at the rates prescribed by 38 U.S.C.A. § 1521 under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section. Indeed, as clarified by the Court in Hartness v. Nicholson, 20 Vet. App. 216 (2006), the application of section 1513(a) for a Veteran 65 years of age and older, permits the exclusion of the permanent and total disability requirement in determining entitlement to pension. Based on the foregoing, the Court concluded that a showing of permanent and total disability is not required in order for a Veteran to obtain special monthly pension benefits. Rather, it is only necessary that the record establish either that he has additional disability or disabilities independently ratable at 60 percent or more, or that, by reason of disability or disabilities, he is permanently housebound. In this case, the appellant has a combined disability rating of 80 percent for pension purposes. Here, the Board notes that the October 2008 rating decision lists the following non-service connected disabilities: chronic dysthymia, rated as 70 percent disabling; diabetes mellitus, rated as 20 percent disabling; hypertension, rated as 10 percent disabling; along with numerous other disabilities rated as noncompensably disabling. The appellant's nonservice connected disabilities for pension purposes have been assigned a combined rating of 80 percent. Accordingly, under the interpretation provided by the Court, the appellant meets the requirements for special monthly pension at the housebound rate. In view of this determination, the question concerning whether the appellant is housebound is in fact is a moot point and will not be addressed. New and material Evidence Prior to analyzing the Veteran's claim, the Board acknowledges the recent ruling in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Essentially, the Court found that a Veteran does not file a claim to receive benefits only for an acquired psychiatric disorder, such as PTSD, but in fact makes a general claim for whatever mental condition may be afflicting the Veteran. The Board will analyze the Veteran's current claim under this framework, based on this ruling and appropriate review of the evidence of record. As such, the Board will also consider the Veteran's application to reopen his service connection claim for a nervous condition due to combat experiences in service as an application to reopen his service connection claim for all acquired psychiatric disorders, to include PTSD, dysthymic disorder and schizophrenia. A February 1978 Board decision denied the Veteran's service connection claim for an acquired psychiatric disorder. The original denial considered the Veteran's service treatment records, and post-service private and VA treatment records. Post-service records starting in 1973, recorded psychiatric treatment, to include multiple hospitalizations for a nervous condition. A VA examiner in December 1975, diagnosed psychotic depression. In February 1978, the Board denied the Veteran's service connection claim finding that an acquired psychiatric disorder was not present during service or for many years after separation from service. Ultimately, this decision became final, and the Veteran failed to appeal the decision within the prescribed time. 38 U.S.C.A. § 7104 (West 2009). A November 2001 rating decision considered the Veteran's claim for service connection for PTSD. This decision considered the Veteran's service and VA treatment records that showed psychiatric hospitalizations, along with diagnoses of schizophrenia, undifferentiated type, with schizoaffective depressed disorder; a statement from the Veteran's sister who in March 1978 described changes in the Veteran's behavior after he returned from the war; a September 2001 VA examination report wherein the examiner determined that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD, and instead diagnosed chronic dysthymia unrelated to military service; and various statements submitted by the Veteran to support his claim for a psychiatric disorder due to his combat experiences in service. Upon reviewing the evidence of record, the RO concluded that there was no evidence indicating that the Veteran's dysthymic disorder was etiologically related to service. Accordingly, the Veteran's claim was denied. Ultimately, this decision became final, and the Veteran failed to appeal the decision within the prescribed time. 38 U.S.C.A. § 7105 (West 2009). The October 2008 rating decision on appeal denied the Veteran's application to reopen the claim of service connection for schizophrenia, chronic undifferentiated type, also claimed as a nervous condition. However, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. If the Board finds that no such evidence has been offered, that is where the analysis must end. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The claim for service connection for an acquired psychiatric disorder may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The application to reopen this claim was received in July 2008. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Newly received evidence includes a VA examination report that noted a diagnosis of depressive disorder; VA and private clinical treatment records that recorded a treatment for dementia, Alzheimer's disease, cognitive dysfunction, and insomnia. To the extent that the evidence noted a diagnosis of depressive disorder, cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156. To the extent that the records document diagnoses of dementia, Alzheimer's disease, cognitive dysfunction, and insomnia, these disabilities have not been claimed as acquired psychiatric disorders, nor is there any competent medical evidence that the conditions are etiologically linked to service. The evidence is not new and material because it does not relate to an unestablished fact necessary to substantiate the claim, that is, evidence of a nexus between the an acquired psychiatric disorder and an injury, disease, or event in service, the absence of which was the basis for the previous denials of the claim in the decision in February 1978, and November 2001. 38 C F.R. § 3.156. For the above reasons, the additional evidence is not new and material. And as the claim is not reopened, the benefit-of- the- doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection The Veteran contends that he developed a circulatory condition of the lower extremities during service, to include as due to exposure to cold weather during the Korean War. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304 (2009). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service- connected. 38 C.F.R. § 3.310 (2009). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre- existing such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a) (2009). 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 a diagnosis including the word chronic. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). Service connection may also be warranted 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) (2009). In the case of a Veteran who engaged in combat with the enemy during a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Historically, the Veteran served during World War II and during the Korean Conflict. The Veteran's Department of Defense Forms 214 show that the Veteran was awarded the American Theater Service Medal, a Combat Infantry Badge and the Korean Service Medal with 2 Bronze Stars. The service medical records contain no complaint, history, or finding consistent with a circulatory condition of the lower extremities, or residuals of a cold injury. In May 2008, a VA clinician noted that the Veteran complained of right leg pain secondary to peripheral vascular insufficiency. The Veteran was scheduled for angioplasty to correct the right leg occlusion. He had recently had a left leg angioplasty of the left leg for severe arterial stenosis. The clinician indicated that the Veteran suffered from peripheral vascular arterial insufficiency. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility, that is, the probative value of the evidence once the evidence is admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. The evidence of record shows that the Veteran was involved in combat with the enemy during his service in Korea. However, there is no evidence demonstrating that the circumstances of the Veteran's service in Korea included exposure to extreme cold weather. Nonetheless, even assuming exposure to extreme cold weather while stationed in Korea, service connection is not warranted unless the evidence also establishes that the Veteran has a current disability that resulted from his in-service cold weather exposure. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). On this issue, the preponderance of the evidence is against the Veteran's claim. The service treatment records do not show that the Veteran was treated for a circulatory condition of the lower extremities, frostbite or any other complaints related to cold weather exposure during service. Thus the service medical records lack the combination of manifestations sufficient to identify a chronic bilateral lower extremity disability and sufficient observation to establish chronicity in service. As chronicity in service is not adequately supported by the service treatment records, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b) (2009). After service, treatment for severe arterial stenosis and peripheral vascular arterial insufficiency of the lower extremities was initially documented in 2008. The absence of documented findings until 2008, weighs against continuity of symptomatology. 38 C.F.R. § 3.303(b) (2009); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The absence of symptoms constitutes negative evidence and opposes the claim. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002). To the extent that the Veteran claims continuity of symptomatology pertaining to the lower extremities post-service discharge, the Board finds that the evidence of continuity fails not only because of the lack of documentation, but rather because the Veteran's assertions are less credible and less probative and persuasive than the negative contemporaneous evidence such as the service treatment record which noted no abnormalities of the lower extremities on separation from service or exposure to extreme cold weather, and the absence of any findings, and the fact that the a circulatory condition of the lower extremities was recorded starting in 2008, and was attributed to peripheral vascular insufficiency, as opposed to an in-service cold injury. Therefore, the Board finds that continuity of symptomatology is not established under 38 C.F.R. § 3.303(b). Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Although the Veteran is competent to describe his symptoms such as bilateral lower extremity pain, the diagnoses of severe arterial stenosis and peripheral vascular arterial insufficiency of the lower extremities, and the medical causation is not subject to lay observation. The determination as to the presence, type, and cause of severe arterial stenosis and peripheral vascular arterial insufficiency of the lower extremities is medical in nature and not capable of lay observation. The relationship of any current circulatory condition of the lower extremities to service is a medical determination that requires specific training and knowledge. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). Under certain circumstances, lay evidence may establish a diagnosis of a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The current diagnosis of a circulatory condition of the lower extremities was based on diagnostic tests. Therefore, the current circulatory condition of the lower extremities is not a simple medical condition that a lay person is competent to identify as a lay person is not qualified through education, training, or experience to interpret diagnostic tests. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the determinative question involves medical causation. Therefore, medical evidence of an association or link between the current circulatory condition of the lower extremities, first shown after service, and an injury, disease, or event in service, is needed and a lay assertion on medical causation is not competent evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. As a lay persons, the Veteran is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis, not capable of lay observation or one that is not a simple medical condition, or on medical causation, where a lay assertion on medical causation is not competent evidence. For this reason, the Board rejects the statements of the Veteran as competent evidence to establish onset of the Veteran's current circulatory condition of the lower extremities in service. Additionally, on the question of medical causation, medical evidence of an association or link between the Veteran's current circulatory condition of the lower extremities, first diagnosed after service, and service, there is no competent medical evidence that supports the claim. As the Board may consider only competent, medical evidence to support its findings as to questions involving a medical diagnosis that is not capable of lay observation, and of medical causation where lay assertion on medical causation is not competent evidence, in the absence of competent medical evidence that associates a circulatory condition of the lower extremities to service, the Board finds that the preponderance of the evidence is against the claim that the Veteran's current circulatory condition of the lower extremities was incurred in or aggravated by service. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Special monthly pension by reason of being housebound is granted, subject to the law and regulations governing the award of monetary benefits. As new and material evidence has not been presented, the claim of service connection an acquired psychiatric disorder is not reopened, and the appeal is denied. Service connection for a circulatory condition of the lower extremities is denied. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs