Citation Nr: 1301596 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-20 494 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 10 percent for the postoperative residuals of surgical removal of left exostosis talus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by which the RO, in pertinent part, denied entitlement to service connection for a psychiatric disorder, to include PTSD, and granted service connection for postoperative residuals of surgical removal of left exostosis talus. Regarding the latter issue, the Veteran is contesting the initial 10 percent disability rating assigned. In connection with this appeal, it is noted that the Veteran requested and was scheduled for a personal hearing before a Veterans Law Judge at the RO July 2009. Although she was notified of the time and date of the hearing by mail sent to her last known address, she failed to appear for that hearing and neither furnished an explanation for her failure to report nor requested a postponement or another hearing. Pursuant to 38 C.F.R. § 20.704(d) (2012), when an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn. In November 2010, the Board remanded the issues on appeal to the RO for further development of the evidence. This was accomplished to the extent possible without the Veteran's cooperation, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA examination that was necessary for an opinion regarding the origins of her claimed psychiatric disorder. 2. A diagnosis of PTSD is not shown. 3. An acquired psychiatric disorder is not shown to be related to the Veteran's active duty service. 4. The Veteran failed, without good cause, to report for a VA examination that was necessary to evaluate her service-connected postoperative residuals of surgical removal of left exostosis talus. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.655, 4.125 (2012). 2. The claim for an initial rating in excess of 10 percent for service-connected for postoperative residuals of surgical removal of left exostosis talus is denied based on the Veteran's failure to report for a necessary VA examination. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.655(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board has denied the claim of entitlement to a increased rating for service-connected postoperative residuals of surgical removal of left exostosis talus on the basis that the Veteran failed, without good cause, to appear for a VA medical examination that was necessary to decide the issue. As such, the Board has determined that there is no legal entitlement to the claimed benefit as a matter of law. See 38 C.F.R. § 3.655. As the Board has denied the claim as a matter of law, the notice and assistance provisions of the VCAA are inapplicable because there is no reasonable possibility that any notice or assistance could aid in substantiating the claim. See e.g., Mason v. Principi, 16 Vet. App. 129, 132 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The discussion that follows pertains to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. In a timely May 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The notice did not include provisions for disability ratings and for the effective date of the claim as required by the Court in Dingess. The Veteran is not prejudiced by the omission, however, as service connection for an acquired psychiatric disorder is being denied and no disability rating or effective date will be assigned. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The record contains the service treatment records and service personnel records. The record also contains VA clinical records. The Veteran was scheduled for a VA mental health examination for which she failed to appear. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA treatment records, and the Veteran's statements. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2012) (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In order for a claim for service connection for PTSD to be successful there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App 128 (1997). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. In this case, the evidence does not reflect that the Veteran engaged in combat with the enemy or that any of her claimed stressors are combat related; therefore, the combat presumptions are not met. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d); VAOPGCPREC 12-99. The Board also notes that a 2010 amendment to the PTSD regulation reduced the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity, but is inapplicable to this case. 38 C.F.R. § 3.304(f)(3). In claims for service connection for PTSD based on personal assault, evidence from sources other than the Veteran's service records may corroborate a veteran's account of a claimed in service stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of a stressor include deterioration in work performance and episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavioral changes. Significantly, 38 C.F.R. § 3.304(f)(5) also provides that VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. A medical opinion based on a post-service examination of a veteran can be used to establish the occurrence of a stressor; however, the Board may consider and weigh this evidence in the context of the entire record. Menegassi v. Shinseki, 638 F.3d. 1379 (Fed. Cir. 2011). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops psychosis to a degree of 10 percent or more within one year from separation from service, such disease may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). VA's regulations provide that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran failed, without good cause, to appear for a December 2010 psychiatric examination scheduled in connection with her original claim of service connection for a psychiatric disability. The Veteran has furnished no reason for her failure to report for the examination. As such, the Board will decide the claim based on the evidence of record. 38 C.F.R. § 3.655(b). The service treatment records do not reflect any diagnoses of a psychiatric nature. The Veteran herself denied psychiatric symptoms in the reports of medical history that she completed during her period of service to include on service separation. In May 1975, she complained of loss of appetite, fatigue, and sleeplessness. No diagnosis was rendered. Approximately a week later, she reported that her appetite was improving but that she was still very tired. There were no other symptoms. No diagnosis was stated. In her February 2005 claim for benefits, the Veteran asserted that symptoms of "mental stress" had been present since 1975. The post-service medical evidence contains no records of mental health treatment dated before 2005. The available psychiatric treatment records reflect that the Veteran presently suffers from recurrent major depressive disorder and that she takes psychotropic medication. Several of the treatment records reveal anxiety resulting from financial worries, the death of a parent, a daughter's suicide attempt, and work stress. The mental health treatment records contain no mention of service. Indeed, these treatment records do not show that the Veteran ever discussed service, and a VA examiner or other mental health professional has never related any of the Veteran's psychiatric symptoms to service. At the outset, service connection for PTSD is precluded because the evidence does not reflect such a diagnosis; in order for service connection for PTSD to be granted, a current diagnosis of PTSD is required. 38 C.F.R. §§ 3.303, 3.304, 4.125; Brammer, supra. To the extent that the Veteran is asserting that she suffers from PTSD, the Board cannot accept the diagnosis, as the Veteran is not shown to have the requisite expertise to render a diagnosis of PTSD, which requires specialized mental health training. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). Based on the foregoing evidence, the Board cannot conclude that a psychiatric disorder other than PTSD had its onset in service. The Veteran did complain of vague symptoms such as sleeplessness and loss of appetite during service, but these symptoms were not attributed to a mental health condition. Furthermore, the Board does not credit the Veteran's assertion of "mental stress" since 1975 because she denied psychiatric symptoms in all of her reports of medical history completed in service to include in such reports filled in after 1975 and most notably on separation. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Board notes that the Veteran is competent to provide evidence regarding psychiatric symptoms, as they are readily apparent to her. See Layno, supra. The Board, however, may find that competent evidence lacks credibility. Cartwright, 2 Vet. App. at 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has found that a chronic psychiatric disorder did not have its onset in service. As well, the Board finds that the psychiatric disorder did not have its onset in the year following service separation or for many years thereafter. As stated, the record contains no mental health treatment records dated before 2005. It follows that there was no diagnosed psychiatric disorder in the year following service separation in August 1980. As such, service connection for an acquired psychiatric disorder cannot be granted presumptively as a chronic disability. 38 C.F.R. §§ 3.307, 3.309(a). Similarly, because so many years elapsed between service and the first indication of mental health treatment, the Board cannot find that symptoms of a psychiatric disability had been continuous since service. As stated, the Board does not find credible the Veteran's assertions of psychiatric symptoms since 1975. As such, service connection for the claimed acquired psychiatric disorder cannot be granted based on continuity of symptomatology since service. 38 C.F.R. § 3.303(b); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Finally, there is no competent evidence linking the Veteran's currently diagnosed recurrent major depressive disorder to service. As stated, the Board does not find the Veteran's assertions of psychiatric symptoms since service credible. Other evidence of record links the Veteran's psychiatric symptoms to recent life events to include financial pressures, job insecurity, a parent's death, and a daughter's suicide attempt. At no time did a medical professional link the Veteran's psychiatric symptoms to service. There being no competent and credible evidence of a nexus between the presently diagnosed major depressive disorder and service, the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder is denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303; Alemany, supra. Increased Rating Service connection for postoperative residuals of surgical removal of left exostosis talus was granted by October 2005 rating decision. The disability was last comprehensively evaluated in May 2005. As such, in November 2010, the Board determined that due to the passage of time since the latest VA examination of the feet and the Veteran's continued complaints of adverse symptoms, another examination was warranted to provide necessary findings as to the severity of the service-connected left foot disability. As such, the Board remanded the claim to permit the RO to schedule the necessary VA examination. A VA examination of the feet was set to take place in December 2010. The Veteran failed to appear for the examination. The record contains no indication that the Veteran attempted to cancel, reschedule, or otherwise notify the VA medical facility of her inability to appear for the examinations. As stated, VA regulations provide that, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The Board finds that the scheduled VA examination of the feet was necessary to decide the claim for increase for the reasons set forth above. As the Veteran, without good cause, failed to report for her scheduled VA examination of the feet, and as entitlement to a rating in excess of 10 percent for her service-connected postoperative residuals of surgical removal of left exostosis talus cannot be established without a current VA examination of the feet, the claim is denied as a matter of law. 38 C.F.R. § 3.655. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. An initial evaluation in excess of 10 percent for service-connected postoperative residuals of surgical removal of left exostosis talus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs