Citation Nr: 1036616 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 07-20 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for left shoulder disability. 2. Entitlement to service connection for left knee disability. 3. Entitlement to service connection for right knee disability. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for depression. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for bilateral tinnitus. 8. Entitlement to service connection for hypertension, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from May 1968 to December 1971. Regarding entitlement to service connection for left shoulder disability, left knee disability, right knee disability, bilateral hearing loss, tinnitus and PTSD, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in April 2006. A statement of the case was issued in April 2007, and a substantive appeal was received in June 2007. Regarding entitlement to service connection for hypertension, this matter comes before the Board on appeal from a June 2009 rating decision by an RO of the VA. The Veteran's notice of disagreement was received in July 2009. A statement of the case was issued in October 2009, and a substantive appeal was received in November 2009. On substantive appeal received in November 2009, the Veteran marked the appropriate box to indicate that he wanted a hearing before the Board at the RO. A hearing was scheduled in July 2010, but the Veteran failed to appear. The Board notes that even though the Veteran raised a claim of entitlement for service connection specifically for PTSD, there is evidence that he has been diagnosed with depression as well. The Court of Appeals for Veterans Claims (Court) recently found that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Since the medical evidence includes diagnosis of a psychiatric disorder other than PTSD, the Board believes that the issue of entitlement to service connection for depression is encompassed within the scope of the Veteran's claim on appeal. The Board has set out this issue separately in this case, as reflected above. The Veteran did testify at a September 2007 hearing before a Decision Review Officer (DRO). A transcript is of record. The issues of entitlement to service connection for diabetes and for heart disease, to include as due to herbicide exposure, have been raised by the record (specifically, in a statement received in August 2010), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Left shoulder disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is left shoulder disability otherwise related to such service. 2. Left knee disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is left knee disability otherwise related to such service. 3. Right knee disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is right knee disability otherwise related to such service. 4. A claimed stressor has been corroborated. 5. The Veteran failed to report for a PTSD examination, and the record as it stands does not include a medical diagnosis of PTSD linked to the corroborated stressor. 6. Depression was not manifested during the Veteran's active duty service or for many years thereafter, nor is depression otherwise related to such service. CONCLUSIONS OF LAW 1. Left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 3. Right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 4. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). 5. Depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice specifically for hearing loss by a letter dated in December 2003. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in February 2005 (specifically for hearing loss), April 2005 and April 2006 subsequent to the July 2005 adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the February 2005, April 2005 and April 2006 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in an April 2007 statement of the case, and September 2009 supplemental statement of the case, following the provision of notice in February 2005, April 2005, and April 2006. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA and private treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran the opportunity to give testimony before a DRO in September 2007. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran was not provided VA examinations for left shoulder disability and bilateral knee disability, for reasons discussed in detail later in this decision, the Board does not find the Veteran's statements and testimony regarding the claimed incidents and injuries and continuity of symptoms to be credible. As such, the Board finds that examinations and nexus opinions are not necessary with regard to the left shoulder and bilateral knee disability issues. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran was scheduled for a VA psychiatric examination specifically for PTSD in August 2008. However, the Veteran failed to appear and did not provide good cause. The RO has requested the Veteran to advise if and when he is ready to report for such an examination, but to date he has not responded. The Veteran's representative has not addressed the failure to report or suggested any reasons for the failure to report. Consequently, another VA examination will not be scheduled, and the claim will be adjudicated based on the evidence of record. See 38 C.F.R. § 3.655. As noted earlier, the Veteran also failed to report for a Board hearing scheduled at his request. The Board finds that VA has offered all due assistance to the Veteran and furnished him with the opportunity to undergo VA psychiatric examination and to testify at a Board hearing. It is unfortunate that the Veteran has elected not to cooperate with VA's attempts to assist him in this regard as additional evidence might have been developed which might be advantageous to his appeal. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by decisions on the claims at this time. Laws and Regulations The issues before the Board involve claims of entitlement to service connection for left shoulder disability, bilateral knee disability, PTSD and depression. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis I. Left Shoulder and Bilateral Knees In a claim received in March 2005, the Veteran reported that his left shoulder disability began in 1968 and his bilateral knee disabilities began in 1969. At the September 2007 DRO hearing, the Veteran testified that he had injured his left shoulder and knees when he tripped over chains that were used to tie down aircraft. He further testified that as a mechanic, he was constantly on his knees ten hours a day, seven days a week. While the Veteran is competent to report symptoms he experiences, the Board does not find the Veteran's statements regarding his injuries and continuous symptoms to be credible in view of the inconsistencies in his statements and actions as hereinafter discussed.. In a statement received in April 2006, the Veteran reported that he did not complain of pain in his lower extremities since he had a job to do. At the September 2007 DRO hearing, the Veteran's representative explained why there are no treatment records after he had reportedly tripped over the chains-the Veteran simply iced his reported injuries and took medication provided by a corpsman. However, service treatment records reflect that the Veteran sought treatment for various disorders, including calluses on his feet, right thigh pain from playing softball, right ankle pain from playing football. In other words, the Veteran did have the opportunity to seek out medical care for the reported injuries and his failure to do so is inconsistent with his actions in relation to other medical problems. Further, the Board notes that a November 1971 service separation examination report reflects that the Veteran was examined and that medical personnel were of the opinion that his upper and lower extremities were clinically normal. The report of history normally furnished by an individual upon separation is not in the claims file, but there is nothing in the report of medical examination to suggest that the Veteran voiced and complaints related to the left shoulder or knees. The failure to note any left shoulder of bilateral knee problems at that time is especially significant since the express purpose of the exit examination was to document any ongoing service-related problems. In other words, the evidence contemporaneous to service suggests that neither medical personnel nor the Veteran himself were of the opinion that there were any residuals of the claimed injuries. Again, the Veteran never reported the claimed injuries during service although he did not hesitate to report other medical problems. The Veteran's current assertions are simply inconsistent with his actions during service. The Board notes that since complaints and findings reported at the time of service separation are more contemporaneous to service, it is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Post service treatment records show that he was seen at the VA for osteoarthritis of the left shoulder in December 2004, and for his knee pain in January 2009. In one January 2009 VA treatment record, it was noted that the Veteran had right knee pain since Christmas, which would date the onset of right knee pain to December 2008. Overall, the post-service medical evidence does not reflect complaints or treatment related to left shoulder, right knee and left knee disabilities for over 30 years following active service. The Board emphasizes the multi-year gap between discharge from active duty service and initial reported symptoms. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). At the September 2007 DRO hearing, the Veteran's representative requested a VA examination for the Veteran's left shoulder disability. In support of the request, the representative testified that a VA doctor (H.V.) from the El Paso VA medical facility stated that the Veteran's shoulder disability is so old and torn up that surgery would not help the Veteran. The Veteran then testified that Dr. V did state that the shoulder disability is "very old, that it would be almost 99 percent failure to operate." However, a review of the VA treatment records shows that in January 2006, Dr. V stated instead that the Veteran "has chronic rotator cuff tear to left shoulder, surgical opinion to repair the rotator cuff tear in his case does have 50/50 chance failure rate." Perhaps the Veteran was exaggerating to some extent, but such exaggeration does reflect on his credibility as an accurate historian. The Board recognizes that many years have passed since the Veteran's service and his claim for VA benefits. The record shows, however, that no claimed injury was reported during service although the Veteran did have access to and did seek out medical treatment for unrelated disorders. Moreover, the report of separation examination is highly significant in that it documents the clinical findings of medical personnel at that time. There is otherwise no persuasive supporting evidence of a continuity of symptoms for many years after service to link current disability with service. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination with regard to these issues. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claims of service connection for left shoulder, left knee and right knee disabilities. II. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The Board notes that one of the Veteran's stressors appears to have been corroborated. At the September 2007 DRO hearing, the Veteran reported seeing a jet explode in 1969 and riding aboard a helicopter to search for the downed pilot. Excerpts from Chris Hobson's "Vietnam Air Losses, United States Air Force, Navy and Marine Corps Fixed-wing Aircraft Losses in Southeast Asia 1961 - 1973," show two airplane crashes that occurred while the Veteran was aboard the USS Coral Sea (September 1968 to June 1971). A crash occurred in November 1968 when a pilot lost altitude and crashed into the sea. In March 1970, an aircraft crashed into the sea and although a helicopter was on the scene immediately, there was no sign of the pilot. The Board additionally notes that a February 2009 VA treatment record shows that the Veteran's PTSD screening test was positive. However, there is no medical diagnosis of PTSD related to the corroborated stressor. A VA examination was duly scheduled. However, the Veteran failed to report in August 2008. When a claimant fails to report for an examination scheduled in conjunction with an original compensation without good cause, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Based on the evidence of record, service connection for PTSD is not warranted. There is no medical diagnosis of PTSD related to the corroborated stressor. The Board advises the Veteran and his representative that the Veteran may seek to reopen his claim should he received a medical diagnosis of PTSD in the future. III. Depression Service treatment records are silent for any complaints of, treatments for, or diagnosis of depression. Clinical evaluation of the Veteran's psychiatric status upon separation examination in November 1971 was normal. There is otherwise no supporting evidence of depression for many years after service. Post service treatment records show a diagnosis of depression as early as June 2006. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson, 230 F.3d 1330. While various VA treatment records from June 2006 to January 2009 show a diagnosis of depression, there is no persuasive evidence linking it to service. The Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for entitlement to service connection for depression. ORDER Entitlement to service connection for left shoulder disability is not warranted. Entitlement to service connection for left knee disability is not warranted. Entitlement to service connection for right knee disability is not warranted. Entitlement to service connection for PTSD is not warranted. Entitlement to service connection for depression is not warranted. To this extent, the appeal is denied. REMAND Other issues before the Board include claims of entitlement to service connection for bilateral hearing loss and tinnitus. The Board finds that VA medical opinions reflected in the January 2004 and September 2006 VA audiological examination reports are inadequate. No rationale was provided for the September 2006 opinion other than that it was based on a review of the records. In both reports, the VA audiological examiner did not address the September 2003 favorable medical opinion rendered by Vittal T. Pai, M.D. Furthermore, attached to a statement received in August 2010 (which noted hypertension) was a copy of the VA webpage regarding exposure to Agent Orange. The Veteran stated that the article pertained to his claim for service connection for hypertension. Accordingly, the Board redescribed the issues as reflected on the first page of this decision to include herbicide exposure. Appropriate action to determine whether the Veteran had herbicide exposure in service is necessary. The Board notes that in a statement received in April 2006, the Veteran reported herbicide exposure from his time aboard a ship. Further, based on the available military personnel records, it is unclear to the Board whether the Veteran had service in the Republic of Vietnam pursuant to 38 C.F.R. § 3.307(a)(6)(iii). Additional development is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should accomplish any necessary development to determine whether the Veteran has service in Vietnam so as to presume that he was exposed to herbicides. 2. The RO should schedule the Veteran for a VA audiological examination to determine the nature, extent and etiology of any currently manifested hearing loss and tinnitus. The Veteran's claims file must be provided to the examiner for review. All appropriate audiological testing should be performed. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current bilateral hearing loss and/or tinnitus is related to acoustic trauma during service. A rationale should be provided with reference to service treatment records, Dr. Pai's medical opinion, and past VA audiolgical examination reports. 3. If, and only if, the RO determines that the Veteran was exposed to herbicides during service, then the Veteran should be scheduled for a VA examination to determine the etiology of the claimed hypertension The Veteran's claims file must be provided to the examiner for review. All appropriate audiological testing should be performed. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any hypertension is related to service, to include exposure to herbicides during service. A rationale should be provided with reference to past VA audiolgical examination reports. 4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues of entitlement to service connection for bilateral hearing loss, for tinnitus, and service connection for hypertension, to include as due to herbicide exposure. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs