Citation Nr: 1115818 Decision Date: 04/22/11 Archive Date: 05/04/11 DOCKET NO. 08-25 894 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 60 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 due to surgical removal of a growth on the low back. 4. Entitlement to service connection for a low back disability. 5. Entitlement to special monthly compensation based on a need for regular aid and attendance or by reason of being housebound. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from May to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2006, August 2007, and October 2008 rating decisions. In August 2009, the Veteran requested a hearing; however, he subsequently withdrew his request. The Board previously denied the Veteran's claim for a back claim in November 1976; therefore, the current appeal was adjudicated as a claim to reopen a previously denied claim. In a July 2010 supplemental statement of the case, the RO reopened the claim and denied it on the merits. Normally, the question of whether new and material evidence has been received to reopen a claim must be addressed by the Board because the matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), affirming 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. However, since additional service treatment records appear to have been associated with the claims file in July 1986, the Board will undertake review of the matter on the merits in light of the provisions of 38 C.F.R. § 3.156(c) (2010). The issues of service connection for erectile dysfunction, gastrointestinal disorders, and a sleep disorder have been raised by the record, 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 an increased, initial rating for PTSD, entitlement to a TDIU, and special monthly compensation on the basis of aid and attendance being remanded 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. The Veteran is not shown to have a current low back disability. 2. The Veteran is not shown to have additional disability or disabilities or aggravation of a disability that was caused by carelessness, negligence, lack of skill, or errors in judgment, or similar instances of fault on the part of VA following surgical VA treatment on the low back, or that was caused by an unforeseen event. CONCLUSIONS OF LAW 1. The Veteran's alleged low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. The criteria for compensation under 38 U.S.C.A. § 1151 for additional disability or aggravation of a disability due to VA surgical treatment to remove a growth on the low back are not met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009). The 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; and (3) that the claimant is expected to provide. See Sanders v. Nicholson, 487 F.3d. 881 (Fed. Cir. 2007). The notice should be provided to a claimant before the initial RO decision. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Notice requirements also apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, notice was provided to the Veteran in January and June 2008, prior to the initial adjudication of his claim in October 2008. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. These letters informed him of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, and the assistance that VA would provide to obtain information and evidence in support of his claim. The Board further finds that a reasonable person could be expected to understand from the notice what was needed to substantiate the claim and thus the essential fairness of the adjudication was not frustrated. With respect to VA's duty to assist, the RO attempted to obtain all medical records identified by the Veteran. The Veteran's service treatment records are in the claims file. VA and private treatment records are in the claims file. The claims file was reviewed for a VA opinion, which the Board finds adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The Board finds that no further action is necessary to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A (West 2002), or 38 C.F.R. § 3.159 (2010), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria and Analysis 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 or disease 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Where a veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 U.S.C.A. § 1151 (West 2002). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). In order for the disability or death to qualify for compensation under 38 U.S.C.A. § 1151, the disability or death must not have been the result of the veteran's willful misconduct, and must have been caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the VA hospital care, medical or surgical treatment, or examination that proximately caused the disability or death, must have been careless, negligent, lacked proper skill, or involved an error in judgment, or an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a). The additional disability or death must not merely be coincidental with the VA hospitalization, medical, or surgical treatment. Finally, proof of aggravation, in the absence of evidence satisfying the causation requirement, will not suffice to make the additional disability or death compensable. 38 C.F.R. § 3.358(c)(1)(2) (2010). In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with his physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b)(1), (2) (2010). The Veteran essentially contends that the surgical procedure he underwent in the 1970s at the Oteen VA Medical Center to remove a growth on his low back, which aggravated the condition and caused the cysts to spread to other parts of his body. The Veteran's service treatment records include a January 1970 pre-induction medical history report that indicates the Veteran reported having recurrent back pain; and he explained that he had back pain with strain. However, the associated medical examination was negative for any abnormalities of the spine. In May 1970, a few days after the Veteran entered active duty, he reported having back pain. The record indicates there was full range of motion and that no diagnosis was offered. On the May 1970 separation medical history report, the Veteran again indicated he had recurrent back pain; the associated medical examination contained no evidence of a spine abnormality. The record indicates that the Veteran had a pilonidal cyst on his spine that was removed in October 1974 at a private hospital. Prior to the surgery, the Veteran reported that the cyst was draining pus and blood. The cyst was excised and the postoperative course was uncomplicated except for some moderate bleeding when the dressing was removed. At the time of discharge, the wound was clean. A November 1974 notation indicates that the wound was not completely healed at discharge and that a follow-up appointment was scheduled. The record reflects that the Veteran sought disability benefits from the Social Security Administration that were denied. In an October 1974 reconsideration request, he noted that he had a cyst removed in October 1974 and stated that it "bleeds constantly" and that he was too weak to work. A December 1975 VA hospital summary indicates the Veteran had a history of pilonidal cyst since 1973 and that it was removed by his physician in 1974. The cyst had since recurred and had worsened with episodic pain and pus drainage. He underwent a pilonidal cystectomy and he tolerated the procedure well. He was to return in one week for suture removal. Follow-up records indicate the sutures were removed and, in March 1976, the Veteran complained of back pain. A little bleeding from the pilonidal cyst scar was noted. An August 1976 disability determination notes that a pilonidal cyst was removed from the lower spine in 1974 and that multiple examinations revealed that at several months' intervals he developed a draining sinus near the surgical scar from the surgery. However, there was no infection or gross bleeding. A September 1976 VA hospital summary indicates the Veteran had an 8 month history of a draining sinus tract with discharge of blood. He was admitted for a repeat pilonidal sinus excision. Following a wide local excision of the previous pilonidal sinus area, there were no complications. He was eventually discharged for home care. An October 1976 disability determination again noted the cyst removal in 1974 and stated that the condition recurred several times which necessitated surgery each time. There were not apparent complications associated from the procedures. The spine was normal and there were no neurological deficits. A September 1977 VA hospital summary indicates the Veteran had a fistula perianally and that he underwent a fistulotomy. He tolerated the procedure well. No complications were noted and after a few days he was discharged. A January 1978 VA treatment record notes the Veteran's complaints of sore raised over his body. He had unhealed areas on pilonidal cyst area. He was found to have multiple boils and areas of cellulitis on his body. A February 1978 VA treatment record indicates that the Veteran had bleeding from the surgical site of a pilonidal cyst. A couple of months later he requested admission regarding the pilonidal cyst and continued draining, but the area was evaluated as being satisfactory. In June 1978, he underwent an excision of a sebaceous cyst from his neck. An October 1978 VA treatment record indicates the Veteran had a wide and vertical deep excision of a back cyst. In January 1979, a VA treatment record notes that the Veteran continued to have recurrent folliculitis and boils that responded some to treatment intermittently. The record indicated that he would continue to have trouble from time to time in regard to his chronic cystic disease. A July 1979 VA operative report reflects the Veteran had a recurrent lesion on his back and that he underwent removal of a furuncle on his low back. 1980 and 1981 VA treatment records note the Veteran had sebaceous cysts on various parts of his body from time to time and a long history of boils. Private treatment records from 1995 to 1996 note treatment for skin problems including multiple lesions on his body and hidradenitis; however, there is no reference to pilonidal cysts. July 2004 to February 2007 VA treatment records contain no findings of a lower spine disability. December 2007 to July 2008 VA treatment records contain evidence of skin sores and decubitus ulcers but not of a pilonidal cyst. December 2007 VA treatment records specifically note the presence of scattered ulcerations over the back, thighs, and within groin folds and abdominal folds. The nurse opined that the ulcers in the abdominal folds are likely from pressure/moisture/friction/shear and that the other ulcers possibly had the same etiology. He was also noted to have scattered scabs on his buttocks and mild erythema that was likely from lying mainly on his back. A February 2008 record contains a diagnosis of pressure ulcers. May and June 2009 VA treatment records do not relate to the Veteran's pilonidal cysts and contain no findings of a low back disorder. In June 2010, the Veteran's claims file was reviewed for a VA opinion regarding a surgical procedure in July 1979, which was the excision of a furuncle from the lower back. The operation report was summarized and the reviewer stated that there was no additional information to suggest that the procedure went other than well, and there was nothing to suggest that there were any postsurgical complications. The opinion was that it did not seem feasible that the Veteran would have any long-term disability or complications related to the procedure. It appeared to be a simple procedure with no documented complications immediately postoperatively. Having carefully considered the evidence pertaining to the Veteran's claim, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. Simply put, the greater weight of probative evidence is against finding that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable. The Veteran finds fault with VA's surgical removal of a growth on the lower spine in the 1970s. Notably, the initial surgery he received for removal of the low back cyst was in 1974 and it was performed at a private hospital. The procedures performed by VA were for recurrences of the initial cyst. The record shows there were no complications following the VA procedures. Disability determinations from SSA claims the Veteran filed in relation to the initial cyst removal also note there were periodic recurrences of cysts following the 1974 surgery that required additional surgeries with no complications. Further, the Veteran's claims file was reviewed by a VA provider who found no evidence of post-surgical complications and who also indicated that it was not feasible for there to be any long-term complications or disability. Consequently, the Veteran's assertions of additional disability or aggravation of a disability due to VA surgical treatment is not supported by the record. For these reasons, the Board concludes that compensation under 38 U.S.C.A. § 1151 for additional disability is not warranted. The Board also considered whether service connection for a low back disability is warranted on a direct basis. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Board is presented with no underlying pathology to account for the Veteran's complaints of back pain. Despite the voluminous evidence of record, there is no diagnosis of a low back disorder. The Veteran's complaints of pain, alone, are not adequate to establish a current disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board has considered the Veteran's own lay assertions. Certainly, he is competent to report the onset of symptoms such as pain following his surgery, and, to this extent, his assertion is entitled to probative weight. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Accordingly, a preponderance of the evidence is against the claim. ORDER Service connection for a low back disability is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 due to VA surgical treatment involving removal of a growth on the low back is denied. REMAND The Veteran appealed the initial rating assigned with the grant of service connection for PTSD. Notably, the effective date of the grant is July 7, 1986. The rating criteria for evaluating mental disorders changed twice since the effective date of the grant of service connection. Under the criteria in effect July 7, 1986 (the effective date for the grant of service connection), a general rating formula for psychoneurotic disorders provided a 100 percent rating when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Total incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavior processes associated with almost all daily activities such as phantasy, confusion, panic and explosions or aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. A 70 percent rating was warranted when the ability to establish and maintain effective or favorable relationships with people was seriously impaired. The psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132. Effective February 3, 1988, there were revisions in the criteria under the general rating formula for psychoneurotic disorders. There was no change in the criteria for 100 percent, and there were subtle changes in the criteria for 70 percent through 10 percent. A 70 percent rating is provided when the ability to establish and maintain effective or favorable relationships with people is seriously impaired. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. 38 C.F.R. § 4.132. The criteria for rating mental disabilities were again revised, effective November 7, 1996. These current criteria provide that a 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent rating is warranted where there is occupation and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Veteran was given notice of the current criteria, but not of the criteria that was in effect prior to November 7, 1996. Consequently, the Veteran must be given notice of the earlier criteria. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims for a TDIU and for special monthly compensation based on the need for regular aid and attendance of housebound status are inextricably intertwined with the claim for a higher rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Special monthly compensation (SMC) is warranted if, as a result of a service-connected disability, a veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.352(a) (2010). SMC is warranted if a veteran has a service-connected disability rated as total and has an additional service-connected disability independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C.A. § 1114 (s); 38 C.F.R. § 3.350(i). The outcome of the increased rating claim and newly raised claims for service connection could substantially affect the Veteran's claim of entitlement to TDIU as well as the special monthly compensation claim based on aid and attendance. The Board also notes that VA medical records have been associated with the claims file in the form of a CD ROM and it contains over 1,000 records dating from December 2007 to July 2008. These records, which were also reviewed by the Board, have some relevance to some of the remaining claims on appeal. However, the printed copies of these records are not associated with the claims file. On remand, these records must be printed out for inclusion in the record. Accordingly, the case is REMANDED for the following action: 1. The RO should ensure that printed copies of the VA treatment records, as found in the CD-ROM associated with the volume 7 of his claims file, are included in their entirety in the claims file. 2. The RO should provide the Veteran with notice of all versions of the criteria dating back to the effective date for the grant of service connection for PTSD that are applicable to his increased rating claim. 3. Then, the RO should undertake additional development deemed appropriate. 4. After completion of the above development, all of the Veteran's claims should be readjudicated to include the inextricably intertwined issues involving SMC and a TDIU. If any claim on appeal remained denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2010). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs