Citation Nr: 1304770 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-48 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a low spine disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from November 1992 to January 1993 and from November 5, 2002, to December 11, 2002. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010, the Veteran testified during a hearing before a Decision Review Officer, and a transcript of that hearing is associated with the claims file. Then in February 2012, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In May 2012, the Board remanded these matters for further development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. 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 Veteran's mood disorder first manifested during military service. 2. The Veteran does not have a low spine disability related to service. CONCLUSIONS OF LAW 1. The Veteran's mood disorder is etiologically related to his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. A low spine disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter in May 2012. The Board specifically instructed the Appeals Management Center (AMC) to obtain relevant VA records, request psychiatric records from service, provide the Veteran a psychiatric examination, and readjudicate the claims. Subsequently, available VA records dated from December 2007 to December 2011 were associated with the Veteran's electronic file, he was provided a psychiatric examination in June 2012 and an addendum report was also issued, and his claims were readjudicated in a November 2012 supplemental statement of the case. The AMC attempted to obtain the Veteran's VA treatment records dated from January 2002 to December 2007, and his service psychiatric treatment records. However, in a November 2012 memorandum, the AMC outlined all efforts it made to attempt to obtain these records and determined that all efforts had been exhausted and further attempts would be futile. Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Duties to Notify and Assist In correspondence dated in January 2008, prior to the April 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. He was informed of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Some service and VA treatment records and have been associated with the claims file. As noted above, in the November 2012 memorandum, the AMC determined that the Veteran's service treatment records from November 2002 to December 2002, and VA treatment records from January 2002 to December 2007 were unavailable for review. It detailed the efforts it undertook to obtain these records. Furthermore, the Veteran was notified in a letter dated in October 2012 of the unsuccessful efforts to obtain these records and he was requested to submit the evidence if he had them. He was informed to send the evidence as soon as he could and if the Appeals Management Center did not hear from him within 10 days, a decision might thereafter be made. See 38 C.F.R. § 3.159(e) (2012). The Veteran was also informed of alternate sources of evidence that could substitute for service treatment records, including statements from military medical personnel, "buddy" statements, state or local accident and police reports, employment physical examinations, medical evidence from facilities which treated him after separation from service, letters written during service, photographs taken during service, pharmacy prescription records and insurance examinations. Given the thorough efforts put forth by the AMC to obtain the Veteran's records, the Board finds that additional efforts would be futile. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). Additionally, the Veteran was provided with VA examinations with respect to both issues on appeal. These examination reports reflect that the examiners recorded his current complaints, reviewed the history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions supported by a rationale. The Board, therefore, concludes that the examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the duties to notify and assist have been met. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). As noted above, the Veteran presented testimony before the undersigned in February 2012 and before a decision review officer. With respect to the aforementioned hearings, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or veterans law judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned and the decision review officer identified the issues on appeal at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. Following the Board hearing, the case was remanded in order to obtain additional VA treatment records, service treatment records, and to afford the Veteran another VA examination. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A Psychiatric Disorder The Veteran essentially contends that he has a psychiatric disorder related to service. With respect to Hickson element (1), current disability, the record shows that the Veteran has a current diagnosis of a mood disorder. See June 2012 VA examination report. Hickson element (1) is accordingly met for the claim. With respect to in-service disease and injury, the available service treatment records include a record the exact date of which is not discernible. A sick form dated Thursday, November 25 without a year given shows that the Veteran was sent to a psychologist and that he was a disciplinary problem while on sick call. It appears that the date was November 25, 2002, as another record of that same date indicates the Veteran was seen in sick call for back, foot and knee pain. Additionally, the relevant evidence also includes the Veteran's assertions that during his first period of service he experienced difficulties due to his inability to perform activities in accordance with the requirements. He indicated that due to his natural smile and friendly manner, he was considered to have a poor attitude. He further stated that he was eventually recommended for discharge by a command psychologist. See e.g. April 2010 VA examination report. The Board notes that the Veteran is competent to give evidence about what he experienced; and these difficulties during service are subject to lay observation. See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore, Hickson element (2) is satisfied. However, it is noted that service treatment records from the first period of service do not show any psychiatric complaints. Moreover, a psychiatric disorder was not noted during the February 2002 enlistment examination and the Veteran denied having nervous trouble of any sort, depression or excessive worry, or previous evaluation or treatment for a psychiatric disorder. With respect to crucial Hickson element (3), nexus, the relevant evidence includes the April 2010 VA examination report. The examiner stated that since the Veteran did not manifest any documented psychiatric symptoms or diagnoses prior to, during, or following his two Army enlistments, there was no record of a psychological evaluation during either enlistments, and he currently had a normal mental status functioning, it was reasonable to clinically conclude that it was not at least as likely as not that the Veteran's claimed anxiety condition was the same as the condition seen ("disciplinary problem" on November 2002) on active duty. Having determined that the April 2010 examination report was inadequate, the Board remanded this matter for another examination in May 2012. The Veteran was subsequently afforded another examination in May 2012. The examiner did not review the claims folder prior to rendering his opinion. Upon evaluation of the Veteran, the examiner noted a diagnosis of mood disorder, not otherwise specified. Five days later, having reviewed the claims folder, the examiner issued an addendum report to his initial examination report. The examiner indicated that based on review of the evidence, the Veteran did not experience any mental health issues prior to service as he was deemed fit for service at enlistment, he experienced mental health issues during and after service, the relevant literature explained that mood disorder was the result of both environmental and genetic factors, it was reasonable to conclude that the Veteran's mood disorder was less likely than not caused by his service. Importantly, the examiner added that the mood disorder more than likely first manifested during service in response to the stress of the situation. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the presumption of soundness applies as no psychiatric disorder was noted on either enlistment examination report. While the VA examiner indicated that mood disorders result from environmental and genetic factors, the examiner then stated that the Veteran did not experience any mental health issues prior to military service based on the available data as he was deemed fit for service at the time of his enlistment. Accordingly, the Board finds that the evidence of record is not clear and unmistakable (i.e., undebatable) that the Veteran had a psychiatric disorder that pre-existed either period of service and the presumption of soundness is not rebutted. The Board finds the June 2012 VA examiner's report to be highly probative, as it was based on a thorough review of the Veteran's medical records and evaluation of the Veteran. The opinion is also consistent with the other evidence of record and is supported by a detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Accordingly, as competent medical evidence indicates that the current disability first manifested during active service, Hickson element (3) is met. Therefore, with resolution of doubt in favor of the Veteran, all the requirements for the grant of service connection for a mood disorder have been met: the Veteran has a current diagnosis of a mood disorder, which had its onset during service, and there is an opinion linking the current disorder to in-service stress. Therefore, the grant of service connection for a mood disorder is warranted. See 38 U.S.C.A. § 5107 (West 2002). Low Spine Disorder The Veteran essentially contends that he has a low back disorder related to service. In this case, there is no evidence that the Veteran has a diagnosis of current low back disorder. The Veteran was specifically afforded an examination in June 2010 to determine the nature of any current back disorder. Upon a thorough evaluation of the Veteran, the examiner found that the Veteran had no lumbar spine condition. There was no limitation of motion, abnormal spinal curvature, spasms, atrophy, guarding, painful motion, tenderness or weakness. The reflex, sensory and motor examination findings were also normal. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current 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). As the competent medical and probative evidence of record does not indicate the presence of a low back disability at any time during the appeal period (the Veteran filed his claim of entitlement to service connection in December 2007), Hickson element (1) has not been met and the claim fails. Cf. McClain v. Nicholson, 21 Vet. App. 319 (2007). In reaching this decision, the Board notes that the Veteran was seen for low back pain during service in November 2002. Additionally, at the February 2012 hearing, he testified that during service he sprained his back and that he continued to have the same problems with his back. However, discomfort/pain is not analogous to disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted). Notably, despite the Veteran's complaint of back pain, the VA examiner did not render a diagnosis of a back disorder. In making this decision, the Board must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges that the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See supra Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board notes that back pain is capable of lay observation, however, a diagnosis as to disorder is not capable of lay observation and the Veteran is not competent with regard to any statements regarding this matter. See e.g. Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion that refutes the findings of a medical professional who undertook a thorough physical examination. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The examiner, a medical practitioner, rendered his findings after an extensive evaluation conducted for the purpose of ascertaining whether the Veteran has a low back disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). (CONTINUED ON NEXT PAGE) ORDER Service connection for a mood disorder is granted. Service connection for a low spine disorder is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs