Citation Nr: 1300536 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 11-24 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a deviated nasal septum, to include sinusitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1948 to July 1950. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified at a hearing before a Decision Review Officer (DRO) in February 2010. A transcript of that hearing is associated with the claims file. This appeal was previously before the Board in May 2012, at which time it was remanded for additional development. VA treatment records were obtained; the Veteran was notified of outstanding evidence and requested to provide authorization for private treatment records; and, the Veteran was afforded VA examinations in July 2012. Given the foregoing, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against finding that an acquired psychiatric disorder other than PTSD is related to service or events therein. 2. The preponderance of the evidence is against finding that any residuals of a deviated nasal septum, to include sinusitis, is related to service or events therein. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder, other than PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for establishing service connection for residuals of a deviated nasal septum, to include sinusitis, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him. In August 2009, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal. Additionally, the letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board notes that, in the present case, initial notice was issued prior to the December 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. Indeed, VA treatment records through June 2012 were associated with the record via Virtual VA, and reviewed for the November 2012 supplemental statement of the case. The Board notes, however, that the Veteran's service records are fire-related and therefore unavailable. The Board is mindful that, in a case such as this, VA has a heightened obligation to assist the Veteran in the development of his claims. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board is also cognizant that the Veteran was provided notice that records for in-service treatment of his broken nose, and for private treatment for his deviated septum in 2002 were needed, and provided an authorization to release such records; however, the Veteran did not complete the authorization and release form with the necessary information. In Wood v. Derwinski, 1 Vet. App 190 (1991), the United States Court of Appeals for Veterans Claims (Court) that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." He has also been afforded VA medical examinations on several occasions, most recently in July 2012. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and are adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 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). Thus, adjudication of his claims at this time is warranted. Service connection As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy, and does not appear to contend otherwise. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Acquired Psychiatric Disorder, other than PTSD Records reveal that the appellant filed a claim for benefits in 1993. Benefits were sought for other disorders than psychiatric impairment. In April 1998 the Veteran indicated that he developed a phobia for crowded and confined places when he worked in-service at Tilton General Hospital. Available service personnel records show that the Veteran served as a Night Ward Man at Tilton General Hospital, assisting nurses with admissions and providing treatment. The Veteran reported that he experienced panic attacks while at Tilton General Hospital, and that in May 1950 he went to the Base Dispensary for an anxiety reaction. Later statements provided greater detail regarding feeling trapped with the patients during lock-downs. The Veteran indicated that his family doctor wrote a letter suggesting that the Veteran be transferred from working on the psychiatric ward before he became a patient there himself. The Veteran reported that following service his doctor sent a letter to the Reserves, which resulted in an unfit for duty determination by reason of mental disorder. The Veteran later indicated that he experienced claustrophobia and panic, which his wife assisted him in coping with. Since the passing of his wife in 1997, he indicated that he felt depressed and experienced difficulty coping. In May 1998 M. Mathias, M.D. ,of Family Health Center indicated that he treated the Veteran for the previous two years. Dr. Mathias indicated that the Veteran reportedly suffered for many years from debilitating anxiety, for which he was treated with medications such as Klonopin and Xanax. Dr. Mathias indicated that the Veteran had informed him that he suffered from anxiety for over 40 years, and had been discharged secondary to this diagnosis. He indicated that the Veteran was additionally treated by the VA. Corresponding treatment records showed that the Veteran was treated for depression in relation to his wife's death. Lay statements were received from those who knew the Veteran both pre and post service. One statement indicated that the Veteran was extremely nervous and suffered from claustrophobia ever since service. The other statement indicated that the Veteran had informed the individual that he had been treated while in service for anxiety, and that this was due to his work on psychiatric wards, and was expected to dissipate with time. The Veteran, however, had reportedly experienced anxiety since service. A statement indicating that Dr. Kissell's records had been destroyed following his death in 1985 was received from Dr. Kissell's wife. She also indicated that she had worked in Dr. Kissell's office, and recalled the Veteran experiencing anxiety. In a February 1999 hearing before a Decision Review Officer, the Veteran explained that during service he was locked on a psychiatric ward to fulfill his duties, attacked by patients, and pulled down an individual who attempted to hang himself. He reported that he was transferred to a surgical ward following a letter from a private doctor who was concerned about the Veteran's nerves, but that on the surgical ward he witnessed medical operations, to include an autopsy. He reported that following service in approximately 1951 or 1952 he was called for an examination, during which he informed the doctor that he experienced nightmares. He indicated that he later received a letter indicated that he would not be recalled to service because he was psychoneurotic. The Veteran reported that since his separation from service he had experienced difficulty in crowds, elevators, traffic etcetera, and only experienced improvement with the help of his wife beginning in 1952, and Dr. Kissell who was since deceased. The Veteran reported that he had received Vitamin B shots from a since deceased doctor, but that these did not help. The Veteran indicated that since his wife's death he had sought treatment at the VA, and was prescribed medications for his anxiety and sleep difficulties. The Veteran indicated that following service he had experienced episodes involving symptoms such as tightness of his throat and difficulty breathing, which had recently re-started since the death of his wife. VA treatment records from 1998 to 1999 show that the Veteran experienced anxiety and fears, and the medical problem list reflected a diagnosis of anxiety with panic attacks and agoraphobia. The Veteran was also considered to have a history of alcohol abuse in remission. Treatment note reflects that the Veteran's panic attacks with agoraphobia were present following his wife's death, and treatment included such medications as Clonazepam and Sertraline. The Veteran also reported that his symptoms first began at a movie theatre in service, and following service were experienced in traffic jams. A March 1999 VA psychiatric examination indicated that the Veteran reported that he experienced symptoms since service. He recalled experiencing a panic attack in approximately April 1950 while in a packed movie theatre. Otherwise the Veteran reported a similar history as previously discussed, to include difficulty serving on the psychiatric and surgical wards at Tilton General Hospital, and depression since his wife's death. He was diagnosed as having panic disorder, with agoraphobia and alcohol abuse in remission. The examiner summarized the Veteran's self-report as involving panic and anxiety symptoms that lessened with his wife's assistance, and had a resurgence following her death, which was also characterized by depression or ongoing bereavement. In November 2009 the Veteran included greater details about his in-service experiences working on the psychiatric and surgical wards at Tilton General Hospital. For instance, he explained that there were situations in which he and the other workers were outnumbered and attacked by patients, or he dealt with violent patients by putting them in strait jackets, or his life was threatened by a patient such that he did not interfere with the patient's escape. The Veteran again explained how this affected his nerves, and his wife helped him to cope for many years until her death. In a December 2009 VA examination, the Veteran was diagnosed as having a panic disorder with agoraphobia (in remission for 1 year with use of medication), the only Axis 1 disorder found on examination. The examiner opined that such diagnosis was in no way related to, caused by or the result of military service. In a February 2010 hearing before a Decision Review Officer the Veteran expounded more on his experiences during service, repeating memories of incidents discussed above and including new incidents. For example, the Veteran recalled talking to an individual beating a punching bag on the psychiatric ward, who on questioning indicated that the punching bag was his wife. The Veteran indicated that although he provided this information to the doctor, the individual was released, and was later returned to the psychiatric ward for killing his wife. The Veteran recalled details regarding a surgical patient who looked up saying, 'tell my mom that I'm gonna be late' then passed away as the Veteran held him. The Veteran explained that he experienced difficulty sleeping since separation from service to approximately five years previously. He indicated that post-service he experienced difficulty going out for approximately four or five years, but that his wife helped him with this. He reported that he experienced anxiety and panic while feeling trapped in traffic approximately three years earlier. VA treatment records through June 2012 show that the Veteran received mental health treatment for disorders to include depressive disorder, dysthymia, anxiety disorder, alcohol abuse in remission and cognitive disorder not otherwise specified. In an April 2009 VA treatment note, a VA neuropsychologist reviewed the VA treatment records with the Veteran which included diagnoses of dysthymia and anxiety disorder. She stated that it was her impression that cognitive difficulties reported by the Veteran in a prior evaluation likely stemmed from those difficulties. She did not, however, feel like she could confirm a causal nexus between problems reported during service and the cognitive difficulties for which she treated him. A May 2012 remand requested another VA opinion address whether the Veteran's psychiatric disorder was a continuation of symptoms experienced during service as reported by the Veteran. As such the Veteran underwent a July 2012 VA psychiatric examination wherein the claims folder was reviewed. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's claim that he experienced symptoms of anxiety and panic during service for which the Veteran received treatment shortly after onset could not be verified due to missing service records, presumably lost in a 1973 fire. The examiner emphasized that panic disorder with agoraphobia was an acute, rather than a chronic disorder. It was explained that panic episodes were separate and distinct as they could occur during particularly stressful circumstances, then resolve fully. The examiner noted that record review indicated the Veteran's episodes of panic tended to occur during increased stress, such as after his wife's death, or when experiencing significant financial strain. As such, alternative causes of panic disorder included psychosocial stressors. The examiner indicated that, as expected with panic disorder, the Veteran also experienced clear periods of remission between episodes of panic, with two periods of remission lasting three years each, and that the Veteran's panic disorder with agoraphobia was in remission with treatment since 2009. The examiner opined that the Veteran's panic disorder with agoraphobia in remission was less likely than not a continuation of symptoms of anxiety that first began during service. In light of the above, the examiner also indicated that the Veteran had been diagnosed with depressive disorder, dysthymia, anxiety disorder, alcohol abuse in remission and cognitive disorder not otherwise specified at varying points in time following separation from service, and that none of these diagnoses was related to, caused by, or the result of any in-service occurrence or event. Residuals of a deviated nasal septum, to include sinusitis Again, a claim was filed in 1993 for other disabilities and a deviated nasal septum, or residuals thereof were not among the disorders claimed. The Veteran asserts that residuals of a deviated nasal septum, to include sinusitis were incurred during or as the result of sustaining a broken nose during service. At his February 2010 hearing before a Decision Review Officer the Veteran indicated that during service he was punched in his nose while boxing, and that his nose immediately gushed blood. He reported that an individual wearing white packed his nose, but that later that evening over dinner it began to gush blood, and he returned to have the individual in white stick a probe in his nose and attempt to reset it. The Veteran indicated that although he did not identify it as such at the time, he experienced trouble breathing from his nose. The Veteran indicated that he did not seek treatment for his nose again until 2005, when he went to St. Margaret's Hospital. He indicated that an X-ray taken at that time showed that he had a deviated septum, and there was a white line indicating he had broken his nose at one time. The Veteran indicated that following an operation he was able to breathe from both sides of his nose for the first time in many years. In a June 2011 statement the Veteran reported that following his boxing injury he was taken to a doctor who reset his nose, and packed it with gauze, but that he had been unable to breathe from his right nostril until a 2002 surgery at St. Margaret's. A September 2002 operative report from St. Margaret showed that the Veteran underwent septal reconstruction, coblation, and tubinate crush to treat his deviated septum, turbinate hypertrophy and nasal obstruction. Virtual VA treatment records through June 2012 show that the Veteran's sinuses were X-rayed in September 2000, and the impression was that the ethmoid sinuses were consistent with sinusitis. In August 2001 the Veteran reported experiencing recurrent nasal stuffiness and obstruction making it difficult to breathe, that was worse in the summer than the winter. It was noted that this was atypical for sinusitis, but very typical for a response to some allergens; however, in December 2001 allergen testing was negative. The Veteran was treated with such medications as inhalers and nasal decongestant drops. Pursuant to a May 2012 Board remand, the Veteran was afforded a VA examination in July 2012 at which time his claims folder and electronic medical records were reviewed. The Veteran reported his history of breaking his nose in service while boxing, and having his nose straightened incorrectly by a medic. He again reported that he experienced difficulty breathing, primarily through the right nostril, until his nose was reset. The examiner reviewed the September 2002 operative report for septal deviation. The examiner reviewed May 2012 nasal bone X-rays showing chronic sinusitis in the ethmoid sinuses, and changes in the nasal septum consistent with prior resection, and prominence of the mucosa lining bilaterally in the nasal cavities, which could be secondary to allergic and/or chronic rhinitis. The examiner diagnosed the Veteran as having chronic sinusitis and nasal septum resection. The examiner opined that the claimed conditions was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that although there was no documentation of an evaluation for, follow up for or additional work-up for a deviated nasal septum or injury that may have led to such, the Veteran reported that the original injury occurred in 1950 with surgical correction performed in 2002. The examiner indicated that there were additional civilian physical examinations in the file, but no other mention of a deviated septum. The examiner opined that it was less likely than not that any diagnosed residuals of a deviated septum arose during service or were otherwise related to any incident of service, to include the broken nose injury sustained as described by the Veteran. Analysis In sum, regarding an acquired psychiatric disorder, the Veteran contends that he is entitled to service connection for a psychiatric disorder due to traumatic experiences while working in the surgical and psychiatric wards at Fort Dix Tilton General Hospital during service. He asserts that while working in the psychiatric ward he was attacked by psychiatric patients and he feared for his life. Upon requesting a transfer to a different ward, the Veteran was transferred to the surgical ward where a young man died in his arms, he saw soldiers with extensive battle wounds and he witnessed amputations and autopsies. The Veteran asserts that such experiences resulted in his first panic attack during service and alcohol dependence to facilitate sleep. He has reportedly experienced and sought treatment for subsequent panic attacks, troubled sleep and claustrophobia continuously since discharge. In sum, regarding residuals of a deviated septum, to include sinusitis, the Veteran contends that he is entitled to service connection because this was incurred as a result of breaking his nose in service and having it incorrectly reset at that time. He has further indicated that he experienced difficulty breathing, especially from his right nostril ever since service. The Board acknowledges the Veteran's contentions, cognizant that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also notes that the Veteran reported that he worked as a medic, and thus, his opinions regarding medical matters carry weight beyond that of a mere lay person, and will be considered as such by the Board. Although the Veteran is competent to attest to his symptomatology, his competency is distinguished from weight and credibility, which is a factual determination regarding his assertions, and goes to the probative value of the evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see Rucker v. Brown, 10 Vet. App. 67, 74 (1997). After careful review of the entirety of the record, the Board finds that service connection for an acquired psychiatric disorder other than PTSD is not warranted. December 2009 and July 2012 VA opinions find that the Veteran's acquired psychiatric disorders are less likely than not related to service. Furthermore, the July 2012 opinion explains that there has not been a continuity of psychiatric symptomatology, and that panic attacks are acute episodes that coincided with psychosocial stressors. The Veteran's own statements indicate that he experienced symptoms which were alleviated, then reoccurred following his wife's death. To the extent that the Veteran's statements suggest continuity of symptomatology or a nexus to service, the Board finds that the examiner's opinion is entitled to greater weight given the examiner's medical expertise in such a complex field as psychology in providing the reasoned opinion, which considered the Veteran's reported symptomatology. Further, it is noted that at the time of filing his original claims, there was no mention of anxiety or similar problems. Moreover, he had reported that he was discharged for this pathology, but that is not shown by the record. Rather, personnel papers on file reveal that he served two years, had regular promotions, and appears to have had a regular discharge. Further, the Board finds that service connection for residuals of a deviated septum, to include sinusitis is not warranted. Specifically, the Board concludes that the most persuasive evidence is against the claim of service connection for residuals of a deviated nasal septum. The Board accords particular probative value to the July 2012 VA examiner's opinion finding that it is less likely than not that residuals of a deviated septum arose during service or were otherwise related to any incident of service, to include the broken nose injury sustained as described by the Veteran. The VA examiner's opinion was arrived at after thorough and comprehensive review of the claims folder; the Veteran's actual medical history; and, the examination of the Veteran. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims folder was reviewed). To the extent that the Veteran's statements suggest continuity of symptomatology or a nexus to service, the Board finds that the examiner's opinion is entitled to greater weight given that the reasoning provided fully considered the Veteran's reported history. As such, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, other than PTSD is denied. Entitlement to service connection for residuals of a deviated nasal septum, to include sinusitis, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs