Citation Nr: 1042297 Decision Date: 11/10/10 Archive Date: 11/18/10 DOCKET NO. 07-10 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for a left foot disorder. 4. Entitlement to service connection for sciatica symptoms of the right lower extremity. 5. Entitlement to service connection for sciatica symptoms of the left lower extremity. 6. Entitlement to service connection for a right ankle disorder. 7. Entitlement to service connection for a left ankle disorder. 8. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. The Board observes that the RO adjudicated the issue of entitlement to service connection for major depressive disorder. However, the medical evidence of record reveals various diagnoses, including but not limited to major depressive disorder. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Therefore, the issue on appeal has been recharacterized as stated above to encompass all currently diagnosed acquired psychiatric disorders. The Board further observes that the Veteran submitted additional evidence in support of his claims for bilateral foot and ankle disabilities after the last adjudication by the agency of original jurisdiction (AOJ). However, the Veteran waived AOJ review of the newly submitted evidence in a July 2008 statement. See 38 C.F.R. §§ 20.800, 20.1304(c) (2010). Further, as the Board finds that further development is necessary as to these issues, the AOJ will be able to review such evidence upon remand. The issues of service connection for a low back disability, sciatica symptoms in the right and left lower extremities, right and left foot disabilities, and right and left ankle disabilities 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 There were no mental health complaints, treatment, or diagnoses during service, and no psychosis manifested to a compensable degree within one year following discharge; and the weight of the evidence does not establish that any currently diagnosed acquired psychiatric disorder, to include major depressive disorder, was incurred or aggravated as a result of any incident, injury, or disease during service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include major depressive disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran was advised in January 2006, prior to the initial unfavorable rating decision in April 2006, of the evidence and information necessary to substantiate his claims, and the responsibilities of the Veteran and VA in obtaining such evidence. In April and August 2006, the Veteran was further advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. The timing defect with respect to these letters was cured by the subsequent readjudication of the Veteran's claims in a February 2007 statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Concerning the duty to assist, the Veteran's service treatment records and all pertinent, identified post-service treatment records have been obtained and considered. There is no indication that he receives any benefits from the Social Security Administration pertaining to the claimed disability. The Board notes that the Veteran was not afforded a VA mental health examination. However, as discussed below, while the evidence reflects a current diagnosis of acquired psychiatric disorder, to include major depressive disorder, there is no indication of any complaints or treatment for any mental health symptoms during service (or any psychosis within one year after discharge), and there is no competent medical or other evidence suggesting a nexus between the current disability and any incident, disease, or injury during service. Accordingly, the Board finds that the medical evidence of record is sufficient, and no VA examination is necessary with respect to this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the circumstances of this case, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits of his claims at this time. II. Analysis Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in the line of duty during active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). To show a chronic disease in service, there must be 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." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 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. Service connection may be granted for psychosis, as a chronic disability, based on a legal presumption if such condition is shown to have manifested to a degree of at least 10 percent within one year after discharge from service. 38 U.S.C.A. § 1112 (West Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). Further, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all lay and medical evidence of record in order to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competent lay testimony may not be rejected unless it is found to be mistaken or otherwise deemed not credible. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Further, lay evidence may not be deemed not credible solely due to the absence of contemporaneous medical evidence. Buchanan, 451 F.3d at 1337. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert, 1 Vet. App. at 54. Here, the Veteran asserts that service connection is warranted for his current mental health disability, namely, depression, because he has "always" been depressed about leaving service "before [his] time was up." He states that this caused to him to start drinking and have other personal problems such as suicidal thoughts. The Veteran has reported receiving VA treatment for depression since 1997; with no other reported treatment. See December 2005 claim; January 2006 statement. Based on all evidence of record, the Board finds that service connection is not warranted for an acquired psychiatric disorder, to include major depressive disorder, as the weight of the evidence does not reflect that the Veteran's current mental health problems are related to any incident, disease, or injury during service. Specifically, there is no documentation of any treatment or complaints for any mental health symptoms in the Veteran's service treatment records. The Board notes that there is no indication that his early discharge in December 1974 was due to any mental health symptoms. In this regard, documents from proceedings before the Naval Discharge Review Board from March 1978 through April 1979 reflect that the Veteran was discharged due to multiple violations of the Uniform Code of Military Justice, namely, 21 days of unauthorized absence, failure to get a haircut twice, 1 hour and 2 hours of unauthorized absence, failure to show his I.D. card, and disrespectful language to a superior officer. The Veteran testified at that time that he got his haircut but it failed to pass inspection, he was intoxicated when he was disrespectful and failed to show his I.D., and he believed the short periods of unauthorized absence were due to a misunderstanding. The Review Board found this testimony to be consistent with other service records, and granted the Veteran's request to amend the character of his discharge. There is no suggestion that his in-service intoxication was due to any mental health problems. Indeed, the Veteran has reported that he began to be depressed only after service. Additionally, the Board notes that the Veteran is competent to testify that he experienced observable symptoms of an acquired psychiatric disorder, such as feeling depressed, continuously since discharge from service. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds the Veteran's statements to this effect to be not credible, as they are inconsistent with the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (a witness's credibility may be impeached by a showing of interest, bias, or inconsistent statements). In this regard, the Veteran's statement in 2006 that he began drinking after service due to depression as a result of his early discharge is inconsistent with his prior testimony in 1978 or 1979, shortly after discharge, that he was intoxicated during service. Further, despite his claim of depressive symptoms since service, the Veteran has reported no mental health treatment prior to 1997. VA treatment records dated from May 1997 through February 2006 confirm continuous treatment. Over the years, he has been variously diagnosed with recurrent major depressive disorder, adjustment disorder mixed, anxiety disorder not otherwise specified, possible cyclothymic personality disorder, impulse control disorder not otherwise specified, borderline personality disorder, and bipolar disorder, as well as history of alcohol abuse and cannabis abuse. See, e.g., records dated from May through November 1997; July 2002; January and July 2004; February 2006. However, none of these treatment records contain any reference to any incident during service, to include the Veteran's early discharge. Rather, the Veteran reported problems relating to his long-standing job and thoughts of opening his own business, dealing with people in general, and grief over deaths of family and friends. See, e.g., records dated in November 1997, September 1999, November 2002, July 2004, July 2005. As such, considering the absence of any treatment for almost 25 years after service, as well as the absence of any reference to any incidents related to service in the numerous VA treatment records dated since 1997, the Board finds the Veteran's lay testimony as to the timing and reasons for his mental health symptoms to be not credible. Similarly, the Board finds that such lay evidence is outweighed by the other evidence of record. See Buchanan, 451 F.3d at 1336 (while the absence of contemporaneous medical records, in and of itself, does not render lay evidence not credible, the lack such evidence may be considered in determining the credibility and weight of the lay testimony); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). Moreover, the nature of psychiatric disorders is such that the Veteran is not competent to testify as to a diagnosis or etiology because such questions require specialized knowledge, training, or experience. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In this regard, the Board notes that the Veteran's treatment records since 1997 include numerous mental health diagnoses, including several personality disorders, which are generally not subject to service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2010). Furthermore, no medical provider has opined that any currently diagnosed acquired psychiatric disorder, to include major depressive disorder, was incurred or aggravated as a result of service. In addition, there is no indication that the Veteran had any psychosis manifest to a degree of at least 10 percent within one year following discharge. See 38 C.F.R. §§ 3.307, 3.309. In this regard, to the extent that the Veteran had any symptoms of depression within the year following discharge, this is not considered a psychosis. See 38 C.F.R. § 3.384 (2010) (listing the diseases that are considered psychoses for the purposes of service connection). There is also no indication of any diagnoses of such psychoses in the Veteran's subsequent treatment records, as summarized below. Moreover, there is no indication that any symptoms manifested to a compensable degree within one year after his discharge from service. The Board notes that the Veteran's representative has asserted that his current depression may be related to his numerous physical conditions. See October 2010 written brief presentation. However, as the Veteran is not currently service connected for any such conditions, further discussion of the provisions concerning service connection on a secondary basis is unnecessary. As the preponderance of the evidence is against service connection for an acquired psychiatric disorder, to include major depression disorder, the benefit of the doubt doctrine does not apply and the Veteran's claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder is denied. REMAND The Veteran's remaining claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The Veteran was afforded a VA examination in March 2006 pertaining to his claimed disabilities. The examiner noted documented treatment during service for symptoms in the low back, lower extremities, feet, and ankles, as well as currently diagnosed disabilities. The examiner further noted the Veteran's subjective complaints of pain continuously since service, and that he reported post-service treatment for each of these conditions. In particular, the Veteran reported receiving treatment for his low back condition, sciatica symptoms in the lower extremities, and bilateral ankle conditions since 1983, as well as VA treatment for his bilateral foot conditions since 1997. It is unclear whether the other prior treatment was at VA or private facilities. However, the examiner opined that she could not give an opinion as to whether the claimed disabilities were related to service without resulting to speculation because it was not in the medical literature and there was no documented treatment for any of the conditions since separation from service. The United States Court of Appeals of Veterans Claims (Court) recently held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the basis for such determination must be apparent from the examiner's report or other review of the evidence. Further, the Board must ensure that any such finding is well supported and reflects that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. See Jones v. Shinseki, 23 Vet. App. 382 (2010); see also Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (stating that VA's duty to assist includes providing a thorough and contemporaneous medical examination that takes into account prior medical evaluations and treatment). Here, it does not appear that any efforts have been made to obtain the referenced post-service treatment records. Further, it does not appear that the examiner considered the Veteran's lay evidence as to the continuity of his symptoms since service. The Board notes that the Veteran has submitted a June 2008 evaluation and opinion from a private podiatrist, R.J.M., indicating that his current bilateral foot and ankle disorders are at least as likely as not related to service, based on review of service treatment records. However, this provider did not include a rationale for such opinion, and it does not appear that he had the benefit of any post-service treatment records. Therefore, this opinion is insufficient to establish a positive nexus to service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (stating that a medical opinion must be supported by an analysis that can be considered and weighed against contrary opinions); Nieves v. Rodriguez, 22 Vet. App. 295 (2008) (stating that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). Accordingly, this case must be remanded in order to have the Veteran identify any outstanding VA and private treatment records pertaining to his claimed disabilities, and to make reasonable attempts to obtain such records. Thereafter, the Veteran must be scheduled for an appropriate VA examination(s) to determine the nature and etiology of such disabilities. Development and adjudication upon remand should reflect consideration of the competency of certain lay evidence. In particular, the Veteran is competent to testify as to a lack of observable symptoms (such as pain) prior to service and continuity of such symptoms after in-service injury, as well as receipt of medical treatment. See Layno, 6 Vet. App. at 469-71; Barr, 21 Vet. App. 303. As noted above, agency fact finders retain the discretion to make credibility determinations and weigh the lay and medical evidence submitted. Buchanan, 451 F.3d at 1337. However, competent lay evidence may be rejected only if it is deemed not credible. McLendon, 20 Vet. App. at 84. Further, lay evidence cannot be deemed not credible solely due to the absence of contemporaneous medical evidence. Buchanan, 451 F.3d at 1337. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall request the Veteran to identify any providers who have treated him since separation from service during the course of the appeal for any symptoms of his claimed low back disability, sciatica symptoms in the lower extremities, bilateral feet disabilities, and bilateral ankle disabilities; and to complete an Authorization and Consent to Release Information to VA form (VA Form 21-4142) for each non-VA provider. After obtaining the necessary authorizations, request copies of all outstanding VA and private treatment records, including but not limited to VA records dated from 1997 forward. All requests and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 2. Thereafter, the RO/AMC shall schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of his low back disability, sciatica symptoms in the bilateral lower extremities, bilateral foot disabilities, and bilateral ankle disabilities. The entire claims file and a copy of this remand should be made available for review, and such review should be noted in the examination report(s). All necessary tests and studies should be conducted. The examiner(s) should identify all current disabilities and offer an opinion as to whether each disability was incurred or aggravated as a result of service, to include the documented injuries during service. The examiner(s) should consider both the lay and medical evidence, to include the Veteran's statements as to the timing of his symptoms and prior treatment. A complete rationale must be provided for any opinion expressed. 3. The RO/AMC shall ensure that the foregoing development actions have been fully completed, and that no additional notification or development is required. If further action is required, it should be undertaken prior to any further adjudication of the claims. 4. Thereafter, the RO/AMC shall readjudicate the Veteran's claims based on all lay and medical evidence of record, with consideration of all raised theories of service connection. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Allow an appropriate period of time for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedures. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of these claims as a result of this action. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs