Citation Nr: 1302509 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 07-00 295A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a scintillating scotoma. 2. Entitlement to service connection for a scintillating scotoma, claimed as retinal condition. 3. Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder. 4. Entitlement to service connection for a heart disorder/disease, claimed as a heart murmur. 5. Entitlement to service connection for degenerative joint disease of the left hip. 6. Entitlement to service connection for degenerative joint disease of the right hip. 7. Entitlement to service connection for sciatica of the left hip/leg. 8. Entitlement to service connection for sciatica of the right hip/leg. 9. Entitlement to an initial compensable evaluation for osteopenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had the following periods of active duty: November 1990 to April 1992; January 1997 to June 1997; January 1999 to July 1999; November 1999 to September 2001; November 2001 to November 2002; and March 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC. The Roanoke RO has assumed jurisdiction. In November 2010 the Board adjudicated some issues and remanded the remaining issues for further development. The issues listed above are the remaining issues on appeal. Irrespective of the RO's action, the Board must decide whether the appellant has submitted new and material evidence to reopen the claim of service connection for scintillatory scotoma, claimed as a retinal condition. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of service connection for scintillating scotoma, degenerative joint disease of the right hip, degenerative joint disease of the left hip, sciatic of the left hip/leg and sciatica of the right hip/leg 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. In a September 1993 rating decision, the RO denied service connection for scintillatory scotoma. The Veteran did not timely appeal the decision and it is now final. 2. Evidence submitted since the RO's September 1993 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for scintillatory scotoma. 3. There is no diagnosis of an acquired psychiatric disorder, to include anxiety disorder, nor has there been a diagnosis at any point during the pending claim or appeal which has been related to service . 4. There is no diagnosis of a heart condition nor has there been such a diagnosis at any point during the pending claim or appeal. 5. The Veteran's osteopenia does not limit the motion of any affected parts. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for scintillatory scotoma are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for an acquired psychiatric disorder, claimed as anxiety disorder, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a heart condition have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 4. The criteria for a compensable initial rating for osteopenia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5013. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a 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 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). A June 2004 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notification also informed the Veteran of the evidence and information necessary to reopen the claim for service connection, including the basis on which the prior claim was denied in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006). Letters date May 2008 and February 2009 notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; she did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Board has reviewed the Veteran's "Virtual VA" file. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examinations were conducted in May and June 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Veteran. App. 303, 307 (2007). The examinations were adequate as the examiner reviewed the record, evaluated the Veteran and provided an opinion with supporting rationale as to whether the Veteran's disabilities were related to service. The examiner also evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria as to osteopenia. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Veteran. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence RO denied service connection for scintillatory scotoma, claimed as a retinal condition, in September 1993. The Veteran did not appeal this decision and it became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d) (2012). The Veteran filed a claim to reopen entitlement to service connection for blurred vision in December 2004 Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define 'new' evidence as existing evidence not previously submitted to agency decisionmakers. 'Material' evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence received since the September 1993 RO decision includes current eye treatment. This evidence is new and material as it was not of record at the time of the last rating decision and it relates to a material element of the claim, specifically evidence of a potential current disability. In determine whether evidence is new and material, the credibility of the new evidence must be presumed. Justus v. Principi, 3 Veteran. App. 510, 513 (1992). The information submitted since the last final rating decision constitutes new and material evidence within the meaning of 38 C.F.R. § 3.156(a); and reopening the claim is warranted. 38 U.S.C.A. § 5108. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Anxiety The Veteran contends that she has an anxiety disorder related to service. There are no service treatment records with any complaints for symptoms or treatment for any psychiatric or mood disorders as the Veteran reported that she did not seek treatment in service as she thought it would be a career ender. In August 2004 a VA examination was conducted to address the Veteran "filing for anxiety." At the examination the Veteran reported difficulty with stress beginning when she was becoming a chief petty officer in 2000. The Veteran's reported a history of stress and worry in service. She reported being prescribed Xanax for the last one to two years for anxiety and to help sleep which she takes approximately once a week. She did not seek psychiatric treatment. Although the VA examiner diagnosed anxiety disorder, not otherwise specified, there was no opinion as to whether it was related to service. The examiner did report the Veteran's history of anxiety disorder starting when she was getting the position of chief petty officer. An additional examination was requested for an opinion on the manifestation and etiology of an acquired psychiatric disorder. In June 2011 a VA examination was conducted. Although the examiner responded "yes" to the question of whether medical and/or psychiatric symptoms present during past year, the symptoms were for the right hip, not psychiatric. There was no current treatment for a mental disorder. The examiner found there to be no psychiatric symptoms present during the past year The Veteran reported having sleep impairment due to sleep apnea. The examiner noted that the Veteran endorsed mild anxiety symptoms, but denied significant psychosocial problems or decline in ability to manage or engage in activities of daily living. Overall she is functioning pretty well, retired, socializes and is traveling. Despite a thorough examination the examiner found that the Veteran did not meet the criteria for DSM-IV diagnosis. The examiner also found that she had no history of a mental disorder. She had some mild anxiety which she controls by breathing and talking to friends. She is retired and stress related anxiety is no longer an issue. No opinion was provided. However, as the Veteran does not have a diagnosed disorder under the DSM-IV it would be impossible for an examiner to opine whether a disorder, which does not exist, is related to service. The Veteran is competent to report symptoms that she experiences, such as difficulty sleeping, however she is not competent to diagnose herself with an acquired psychiatric disorder. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not competent to provide an opinion as to diagnosis and etiology of any psychiatric disorder, and her opinion is of no probative value. Even if it was accorded some probative value it would be outweighed by the medical evidence of record which found that she did not have a clinically ascertainable and chronic acquired psychiatric disorder. The Veteran reported being stressed during service when she was evaluated to be chief petty office, and reported stress when going through divorces, however these were acute and transitory incidents, not evidence of a chronic disorder. Despite multiple examinations the Veteran was not found to have a chronic disability which manifested during service or was casually related to any injury or disease in service. Although the Veteran reported periods of stress both in service and post service, there is no evidence that these symptoms have continued to the present therefore there is no evidence of continuity of symptomatology. There is no evidence of a current diagnosis of an acquired psychiatric disorder, to include anxiety disorder. Disability compensation for veterans derives from two statutes, sections 1110 and 1131. Both provide for compensation, beginning with the following words; "For disability resulting from personal injury suffered or disease contracted in line of duty..." In order for a veteran to qualify for compensation under those statutes, the veteran must prove the existence of current disability and that a disability has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Absent evidence of a diagnosis of an acquired psychiatric disorder disability, the Veteran's claim of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Service connection for an acquired psychiatric disorder is not warranted. Heart Disorder The Veteran contends that she has a heart disorder, claimed as a heart murmur, which began in service. In May 2011 a VA examination of the heart was conducted. The Veteran reported being told she had a heart murmur but that it is stable, she has no treatment for the condition and has not had any problems "its just there." The Veteran reported no medical history of cardiac problems. Upon physical examination there was no evidence of congestive heart failure, pulmonary hypertension, no extra heart sounds and regular rhythm. No evidence of abnormal breath sounds. The examiner was unable to definitely auscultate a heart murmur. Heart size was normal based on x-ray. An echocardiogram was conducted in September 2009 but did not show any evidence of mitral valve abnormality. There is no evidence of a heart disability. The Veteran is competent to report her symptoms but she is not competent to diagnoses a heart disability. Disability compensation for veterans derives from two statutes, sections 1110 and 1131. Both provide for compensation, beginning with the following words; "For disability resulting from personal injury suffered or disease contracted in line of duty..." In order for a veteran to qualify for compensation under those statutes, the veteran must prove the existence of current disability and that a disability has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Absent evidence of a diagnosis of a heart disability, the Veteran's claim of service connection must fail. It is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Service connection for a heart disability is not warranted. Increased Ratings In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. § 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's osteopenia, which is lower than normal bone mineral density (BMD) but not low enough to be classified as osteoporosis, is rated under Diagnostic Code (DC) 5099-5013. DC 5013 is applicable to osteoporosis with joint manifestations. The language following DC 5013 provides that the diseases under DCs 5013 through 5024 are to be rated on limitation of motion of affected parts, as degenerative arthritis. Degenerative arthritis is rated under DC 5003 which stated that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Veteran's osteopenia does not limit the motion of any affected parts. In August 2010 a VA examination was conducted including a bone density scan. This scan showed that her osteopenia is unchanged since 2009. The examiner found that there were no significant effects of osteopenia, and no effects on usual daily activities. There is no evidence that the Veteran's osteopenia limits the motion of any joints, therefore an initial compensable rating is not warranted. ORDER New and material evidence has been received, the petition to reopen a claim for service connection for scintillating scotoma is granted. Service connection for an acquired psychiatric disability, to include anxiety disorder is denied. Service connection for a heart disorder/disease, claimed as a heart murmur, is denied. An initial compensable evaluation for osteopenia is denied. REMAND Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's claim for service connection for scintillating scotoma, claimed as retinal condition, has been reopened. Private treatment records record multiple eye complaints of difficulty focusing, floaters, etc, however it is unclear as to whether there is a clear diagnosis of an eye disorder. Additionally there is no opinion of record as to whether any eye disorder is related to service. As such, remand for an examination is necessary. The claims for service connection for degenerative joint disease of the right hip, degenerative joint disease of the left hip, sciatica of the left hip/leg, and sciatica of the right hip/leg cannot be adjudicated at this time. The Veteran submitted authorization and consent forms for private treatment records for her lower back and hips. Only the first page of the consent forms is in the claims file, therefore there are no signature pages. However there was never any follow up with the Veteran to get completed authorization forms. The VA has a duty to assist the Veteran in obtaining records that she has identified as relevant. The records identified are for treatment from NOVA rehab, Positively Chiropractic, and Dr. BE at Georgetown University Hospital. One request for records was sent to Dr. BE, however there is no record of a second follow up request. A remand to assist in obtaining private treatment records is required. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA ophthalmology examination. The examiner is to opine whether there is a clinically ascertainable disability of the eyes. The examiner shall offer an opinion as to whether it is at least as likely as not that any clinically ascertainable disability of the eyes incurred in service. A full and complete rationale for any opinion expressed is required. If an examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Request updated and completed 21-4142s from the Veteran for NOVA physical rehab, Kathy Coutinho, DC at Positively Chiropractic, and Dr. Brian Evans at Georgetown University Hospital. Following the receipt of the 21-4142s, request treatment records from all identified sources who treated the Veteran for back and/or hip problems. Document all responses. 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims. If either of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). This claim 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. 2012). ______________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs