Citation Nr: 1305202 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 08-01 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for residuals of a concussion. 4. Entitlement to service connection for an acquired psychiatric disability, to include depression and bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to January 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, denied entitlement to the above claimed disabilities. A videoconference hearing scheduled for August 2011 was postponed and it appears that the Veteran was also placed on the list to appear at a Travel Board hearing at the RO. A letter was sent to the Veteran in October 2012 at his last known address requesting that he verify whether he wanted a hearing. The letter was returned as undeliverable. The claims file demonstrates a history of unsuccessful attempts to contact the Veteran. The Board finds that VA has made adequate attempts to contact the Veteran at his most recent address and has made additional attempts to obtain forwarding information. Ultimately the Veteran bears the onus of updating his mailing address with the VA when he moves. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is a two-way street). The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for depression as encompassing entitlement to service connection for an acquired psychiatric disability, to include depression and bipolar disorder, regardless of the precise diagnosis. FINDINGS OF FACT 1. Current peptic ulcer disease has not been demonstrated. 2. Current hepatitis C has not been demonstrated. 3. Current residuals of a concussion have not been demonstrated. 4. An acquired psychiatric disability was first demonstrated long after service and has not been shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for peptic ulcer disease have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a hepatitis C have not been met. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for residuals of a concussion have not been met. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (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 five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in June 2006, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the June 2006 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). 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). VA has obtained all available treatment records reported by the Veteran, including service treatment records and private medical records. In May 2008, the Social Security Administration informed VA that there were no records regarding the Veteran. In August 2009, VA found there were also no records of VA treatment. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran has not been afforded a VA examination or medical opinion in response to this claim but has determined that no such examination or opinion is required. In this case, the Veteran has not demonstrated current diagnoses of peptic ulcer disease, hepatitis C, or residuals of a concussion. Moreover, although an acquired psychiatric disability was diagnosed or treated since the institution of his claim, there is no evidence suggesting a link between that disability and service. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Peptic Ulcer Disease, Hepatitis C, and Residuals of a Concussion 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. § 1131 (West 2002); 38 C.F.R. § 3.303(a). To show a current disability for purposes of a claim for service connection, it is not necessary that the disability be present on the most recent examination. Instead, it need only be shown that the disability was present at some point since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the current claim in May 2006. Since then, the only medical evidence obtained consisted of private treatment records from September to November 2007. The records were negative for any treatment for or diagnosis of peptic ulcer disease, hepatitis C, or any residuals associated with a concussion. In November 2007, there was one notation of possible peptic ulcer disease versus gastrointestinal reflux disease/hiatal hernia. Following diagnostic testing, esophagitis, reflux, was diagnosed. Although the Veteran reported a history of ulcers, the evidence of record since the institution of this claim does not demonstrate the diagnosis or treatment for ulcers or peptic ulcer disease. Moreover, to the extent that a current disability of esophagitis, reflux, has been demonstrated, there is no evidence of that disability during service. Service treatment records are negative for any treatment or diagnosis of esophagitis, nor has the Veteran reported the incurrence of that disability during service. Similarly, while the Veteran has reported that he incurred hepatitis C from a blood transfusion in Wilford Hall at Lackland Air Force Base, there is no evidence of such transfusion or a diagnosis of hepatitis C demonstrated by blood testing. The evidence of record also does not demonstrate any complaints, treatment, or diagnoses of a concussion or any residuals associated with a concussion. The Veteran has not identified any such residuals. The Veteran is competent to report certain observable symptoms and when they began. 38 U.S.C.A. § 1154(a) (West 2002); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A diagnosis, however, of peptic ulcer disease and hepatitis C require diagnostic testing and medical expertise, which he has not been shown to possess. Furthermore, to the extent that the Board may have been persuaded to go beyond the statutory duty to assist and provide the Veteran with an examination, he has demonstrated that this effort would be futile, given his failure to participate in this claim and provide an updated address. Therefore, as the medical and lay evidence does not demonstrate current peptic ulcer disease, hepatitis C, or residuals of a concussion since the institution of the claim, service connection for each claimed disability must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). Because, however, there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired Psychiatric Disability The claims file demonstrated a current diagnosis of bipolar disorder and complaints of depression between September and November 2007. The Veteran indicated a history of symptoms of depression or excessive worry in a November 1980 report of medical history about one month following induction into the military. Service treatment records, however, are negative for any treatment or diagnosis of an acquired psychiatric disability or related symptoms despite multiple instances of treatment for other issues. The only evidence of post-service mental health treatment is in the private treatment records from September to November 2007 noted above. The Board notes that he reported a history of hospitalizations for bipolar disorder during the private treatment in September 2007; however, the Veteran has not identified such treatment despite being advised that he should do so in the June 2006 VCAA letter. The evidence of record does not demonstrate, nor has the Veteran reported, a continuity of symptoms or treatment throughout the 27 year gap between his in-service report of a history of depression or excessive worry symptoms and his post-service diagnosis of bipolar disorder and complaints of depression. Again, the Veteran is competent to report such symptoms as depression or anxiety. 38 U.S.C.A. § 1154(a). He, however, has not reported a continuity of such symptoms. Moreover, although the Veteran reported such symptoms during a report of medical history, there is no evidence that the history of those symptoms is related to his currently diagnosed disability. To the extent that the Board may have been persuaded to go beyond the statutory duty to assist and provide the Veteran with an examination, he has demonstrated that this effort would be futile, given his failure to participate in this claim and provide an updated address. Given the lack of medical evidence in support of the claim and the absence of consistent reports of continuity, the evidence is against a finding of a nexus between the Veteran's current acquired psychiatric disability and his in-service report of a history of depression and excessive worry symptoms. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). Because, however, there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for peptic ulcer disease is denied. Service connection for hepatitis C is denied. Service connection for residuals of a concussion is denied. Service connection for an acquired psychiatric disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs