Citation Nr: 1302012 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 07-10 104 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for lumbosacral degenerative disc disease (DDD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from February 1967 to October 1968. This included time in Vietnam from October 1967 to October 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2006 rating decision of the VARO in Buffalo, New York, that, in pertinent part, denied entitlement to service connection for the disabilities at issue. The case was previously before the Board in January 2011 at which time it was remanded for procedural and substantive purposes. The case has been returned to the Board for appellate review. FINDINGS OF FACT 1. Any current psychiatric disability, to include PTSD, is not shown to be related to the Veteran's active service. 2. Any current DDD involving the low back is not attributable to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for DDD of the low back are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duties to notify and assist Veterans in the development of claims. Regulations for the implementation of the VCAA are codified as amended at 38 U.S.C.A. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2012). Under the VCAA, VA 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b). The Court has also held that the VCAA 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. Those elements are: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disabilities; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The case has been in appellate status for several years and the Board finds the Veteran has been informed throughout the several years of the appeal of his and VA's responsibilities in providing evidence in support of his claims. One reason the case was remanded in January 2011 by the Board was to ensure compliance with the VCAA. After several efforts by VA to obtain additional service treatment records, the claims file contains a June 2012 communication from the Appeals Management Center in Washington, D.C. indicating that all efforts to obtain additional service treatment records have been exhausted. The Board notes that the most important service treatment records, that being the report of separation examination, is of record and has been reviewed. Further, the Board notes that in a report of contact made by telephone in July 2012, an individual at the VAMC called the RO to indicate that the Veteran wanted to cancel an examination scheduled that month "because he wanted to withdraw his appeal." The Veteran was sent a letter dated in September 2012 indicating that VA had received a notice that he wanted to withdraw his appeal. He was asked to complete an attached form and return it to VA within 30 days from the date of the letter, that being September 12, 2012, to confirm whether or not he wished to withdraw his appeal. He was specifically told that if he did not respond within the requested time frame, VA would continue to process the appeal based on the evidence then of record. No response from the Veteran is in the claims file. The Board is aware that the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. §§ 3.159 (c) (4). In this case, VA has obtained the Veteran's available service treatment records and all identified post service records. Additionally, records were obtained from the Social Security Administration. As noted above, the Veteran was scheduled for examinations by VA in July 2012. However, for whatever reason, he failed to report. The record shows that he was also scheduled for examinations by VA in February 2011. However, again, for whatever reason, the Veteran failed to report. The Board notes that in January 2011, the Board requested more information from the Veteran with regard to his claimed stressful incidents in service. The Veteran failed to respond with any information. The Board notes that VA's duty to assist a Veteran in the development of a claim is not a one way street. The Veteran himself has an obligation to assist in the adjudication of a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In view of the foregoing, the Board finds that VA has complied with the VCAA's notification and assistance requirements with regard to the claims for entitlement to service connection. The claim is therefore ready to be considered on the merits. Pertinent Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence of three things: 1) a current disability; 2) inservice incurrence or aggravation of a disease or injury, and 3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Under 38 C.F.R. § 3.203 (b) an alternative method of establishing the second or third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: 1) that a condition was "noted" during service; 2) post service continuity of symptomatology and 3) a nexus between a current disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 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). Service connection for PTSD requires: 1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 2) a link, established by medical evidence, between current symptoms and an inservice stressor; and 3) credible supporting evidence that the claimed inservice stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed inservice stressor. See 38 C.F.R. § 3.304 (f). The provisions of 38 C.F.R. § 4.125 (a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). VA revised the regulations regarding stressor verification in the recent past. Under the new regulation, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terroristic activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, then the requirement of a corroborating stressor is eliminated. 38 C.F.R. § 3.304 (f) (2012). In addition, Veterans who served after December 31, 1946, or during a period of war, certain chronic disabilities, including a psychosis, if present, and arthritis, if present, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). A lay person is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom Routen v. West, 142 F. 3d 1434 (Fed. Cir. 1998), cert. denied, 119 St. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a lay person is competent to identify the medical condition (e.g., a broken leg, a separated shoulder, pes planus, varicose veins, tinnitus, and so forth); (2) a lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); See also 38 C.F.R. § 3.159 (a) (2). A determination as to whether medical evidence is needed to demonstrate that a Veteran currently has the same condition he or she had in service or during a presumptive period, or the lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of the type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage 10 Vet. App. 488, 4-97. When, for example, a condition may be diagnosed by its unique and its readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of a particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154 (a). See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). As held in Davidson, § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report what he or she observes and feels through his or her senses. See Layno. When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kakana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage 10 Vet. App. 496. Once evidence is determined to be competent, the Board must determine whether the evidence is credible, as only then does it ultimately have probative value. See Layno (distinguishing between competency "a legal concept determining whether testimony may be heard and considered) and credibility (a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990)). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997), cert. denied 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F. 3d 1072 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has inherent fact-finding ability. Id. At 1076. Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying in a hearing when he or she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, biased, self-interest, malingering, desire for monetary gain, and witness demeanor). The determination as to whether these requirements of service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Factual Background and Analysis The Board has thoroughly reviewed all the evidence in the claims folder. However while the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000). (The Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Psychiatric Disability, to Include PTSD A review of the available service treatment records reflects that only the report of examination and induction into active service in February 1967 and the separation examination in October 1968 are of record. The Veteran made no reference whatsoever to any psychiatric complaints and the examinations were reflective of normal psychiatric status. In his report of medical history made in conjunction with separation examination in October 1968, the Veteran denied ever having had or having any psychiatric pathology whatsoever. This is in direct contrast to a statement from the Veteran in March 2007 at which time he stated he saw a psychiatrist in service in October 1968. However, at the time of the examination itself in October 1968, as noted above, the Veteran had the opportunity to express concern with regard to having psychiatric symptoms he might have been experiencing and he did not do so. Further, clinical evaluation of his psychiatric status at that time was normal. The initial documentation of the presence of psychiatric pathology did not come for years following service discharge. The post service evidence includes the report of a VA outpatient visit in March 2005. It was stated the Veteran had been talking about Vietnam, and reported having had some unusual experiences in which most of his problems were with fellow soldiers rather than with the enemy. It was stated he had had anxiety about these areas. He had had no history of any psychiatric treatment in the past. It was noted he had been drinking very heavily for several years. The Veteran stated that while in service he mostly worked in the construction area. For some reason, he had a lot of fights with his fellow soldiers. He reported he was a big and strong guy and they always wanted to challenge him. He described this as a difficult time for him. He claimed the soldiers played pranks on him such as putting sand in his bunk. He had had disciplinary action for fighting, but he claimed he never started any fights. Overall, however, he felt good because a training officer gave him a recommendation when he left Vietnam. As for diagnostic impression, the examiner emphasized that the Veteran had rather "unusual" war experiences in that he was preoccupied with concerns about problems with his fellow soldiers. It was noted that following service in Vietnam, the Veteran seemed to do quite well. He was given Axis I diagnoses of: Anxiety disorder, not otherwise specified; and alcohol dependence, in sustained full remission. At the time of a VA outpatient visit in April 2005, the Veteran again referred to "very upsetting" experiences in Vietnam, and they dealt with problems with coworkers, rather than with the enemy. The examiner remarked the Veteran did not actually see any life-threatening situations. The Veteran stated that his experiences in Vietnam helped him develop a work ethic and helped him learn how to take orders. He said this helped him in civilian life. When he was seen in VA outpatient consultation in August 2005 he reported having had troubles with different stressors, particularly with a contractor who was working on his house. The Veteran was scheduled for a psychiatric examination by VA in February 2011, but, for whatever reason, he failed to report. In January 2011, the preceding month, he was asked to provide more specific information with regard to his activities in Vietnam. He did not respond. The record shows that the Veteran was scheduled for another psychiatric examination for any purposes by VA in July 2012, but canceled the examination because he wanted to withdraw his claim. However, there is no withdrawal in writing of the request as required by 38 C.F.R. § 20.204 (2012). As the Veteran was informed in a September 2012 communication from VA, information had been received that he wanted to withdraw his appeal. He was asked to complete an attached form and return it to VA within 30 days from the date of the letter, that being September 12, 2012. The Veteran did not respond. Accordingly, the Board is forced to rely on the evidence that is of record and that evidence is against the claim. There is no medical evidence of record relating any current psychiatric disability, to include PTSD, to the Veteran's active service. The only psychiatric disorder which has been diagnosed is an anxiety disorder. The Veteran has referred to longstanding concerns about his relationship with fellow soldiers in service, but he was not seen for psychiatric purposes until the last few years, a time many years following service discharge. It is unfortunate the Veteran's complete service treatment records are not available, but critical documents, those being the report of medical history made in conjunction with separation examination and the report of separation examination itself are of record. The report of medical history made in conjunction with the separation examination gave the Veteran an opportunity to express whether he had had or ever had had any type of psychiatric complaints. He denied having had any at any time. The clinical evaluation at that time revealed normal psychiatric status. The statements of record from the Veteran pertaining to his experiences in Vietnam do not constitute credible evidence of any type of stressor, even with the application of 38 C.F.R. § 3.304 (a). Without credible supporting evidence corroborating an inservice stressor, service connection may not be granted for PTSD. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Service connection is also not in order for any other psychiatric disability, as there is no medical opinion of record attributing any current psychiatric disability to the Veteran's active service many years ago. Therefore, after thorough review and consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DDD of the Low Back With regard to the low back, in his report of medical history made in conjunction with the separation examination in October 1968, the Veteran denied having or having had any back problems. Clinical evaluation at that time revealed an entirely normal lumbosacral strain spine. This is in contrast to the Veteran's statement in 2007 that he injured his when hit by a truck in Vietnam sometime in 1968. Another record reveals that at the time of a February 2005 claim for service connection, the Veteran stated that he was placed on bed rest and light duty following involvement in the accident. However, as noted above in Rucker v. Brown, a statement found in medical records at the time of treatment and evaluation is of greater probative value as the history is generated with a view toward ascertaining the Veteran's then state of physical fitness. The Veteran has claimed that he was treated and evaluated for his back disability during his active service, but it seems strange that he would fail to make any mention of this at the time of his separation examination in October 1968. Further, clinical evaluation at that time revealed a normal lumbosacral strain spine. Accordingly, what ever problems the Veteran might have had with his back during service must have cleared without any residual disability because at the time of separation examination, there was no back disability identified. The Board again cites to Rucker v. Brown, 10 Vet. App. 67, 73 (1997), in which it was indicated the statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. The initial documentation of the presence of back problems in the years following service did not come until the early 2000's, a time many years following service discharge. The post service medical evidence reflects the Veteran was seen on one occasion in March 2004 by VA for a chief complaint of bilateral knee and bilateral ankle pain. The Veteran stated that he had been evaluated by a physician at a local facility who related he had significant spurring involving in all joints. The Veteran denied any low back pain, but later related that he did have pain at times across the low back area. With regard to past medical history, the Veteran did not refer to any back problems. Following examination the Veteran was given a pertinent impression of lumbosacral strain DDD with probably L5/S1 central disc, causing reproduction of right lower extremity discomfort. The Veteran has not been cooperative in the development of his claim and the Board has little evidence to rely on. That evidence does not refer to any medical opinion indicating a causal relationship between any current low back disability, including DDD, and the Veteran's active service many years earlier. In Swann v. Brown, 5 Vet. App. 229, 233 (1993), it was determined the Board is not bound to accept an uncorroborated account of a Veteran's medical history, but must assess the credibility and weight of the evidence provided by the Veteran. In this case, the Veteran has provided little evidence. His reference to having been injured in service and receiving treatment, is not supported by the more contemporaneous evidence of record, that again being the report of separation examination at which time he specifically denied ever having had any kind of back problem. Therefore, based on the foregoing, the Board finds that the most competent, credible, and probative evidence of record preponderances against a finding that any current back disability, including DDD, was incurred in or was otherwise related to the Veteran's active service. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic acquired psychiatric disability, to include PTSD, is denied. Service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs