Citation Nr: 1306318 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-23 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for dysentery. 3. Entitlement to service connection for residuals of a head injury. 4. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from June 1970 to February 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2008, a statement of the case was issued in June 2009, and a substantive appeal was received in July 2009. The Veteran was scheduled to present testimony at a video conference hearing before a Veterans Law Judge in December 2012. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2012). Although a claimant may describe only one particular mental disorder in a service connection claim, the claim should not necessarily be limited to that disorder. Rather, VA should consider the claim as a claim for any mental disability that may reasonably be encompassed by several factors, including: the claimant's description of the claim, the symptoms the claimant describes, and information the claimant submits or VA develops and obtains in connection with the claim. The Court has indicated that a claimant does not file a claim to receive benefits only for a particular psychiatric diagnosis, but rather for the affliction his mental condition, however diagnosed, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, while the Veteran initially claimed service connection for posttraumatic stress disorder (PTSD), the Veteran was diagnosed with anxiety disorder not otherwise specified at a December 2010 VA psychiatric examination. Thus, the issue has been rephrased as entitlement to service connection for an acquired psychiatric disorder, as reflected on the first page of this decision. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The issues of entitlement to service connection for residuals of a head injury and entitlement to an initial compensable rating for bilateral hearing loss 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. The Veteran's anxiety disorder is causally related to an incident of the Veteran's service. 2. The Veteran does not have a current disability of dysentery. CONCLUSIONS OF LAW 1. The Veteran's anxiety disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for service connection for dysentery have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with pre-adjudication notice by letter dated in April 2007. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the Veteran with additional notice in June 2009, subsequent to the initial adjudication, which also complied with the specificity requirements of Dingess. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notices. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, afforded the Veteran a VA psychiatric examination, and afforded the Veteran the opportunity to give testimony before the Board at the RO in December 2012 (though he failed to report). All known and available records relevant to the issues being decided on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claims for service connection for an acquired psychiatric disorder and for dysentery at this time. Laws and Regulations 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; 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 competent evidence 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). Some tropical diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. Dysentery is a listed tropical disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(4), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(b). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(4). 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). Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. Acquired Psychiatric Disorder The Veteran contends that he currently has an acquired psychiatric disorder as a result of several in-service stressors, including an incident where his best friend (a pilot named Lieutenant B.) was shot down in a plane and captured by the enemy. The Veteran's service treatment records are negative for any complaints, findings, or treatment of a psychiatric disability. More than 33 years after his discharge from service, a June 2006 VA treatment record noted that the Veteran was taking Clonazepam for insomnia and that such medication would be refilled. A January 2007 VA treatment record noted that a PTSD screening was negative for the Veteran. In April 2008, the Veteran submitted journal entries which document various incidents of his service. One entry dated in September 1972 discussed how Lieutenant B.'s plane was shot down, that the enemy "got him" and that he was listed as MIA POW. In June 2009, the National Archives and Records Administration (NARA) confirmed that Lieutenant B. was a pilot involved in an air crash landing and hostilely captured on the same date in September 1972 that was documented by the journal entry. (The Veteran did not provide enough specific information to research and corroborate any of his other alleged in-service stressors.) The Veteran underwent a VA psychiatric examination in December 2010. On that occasion, he described several in-service stressors, including the incident involving Lieutenant B. The Veteran stated that he had been in charge of pre-flight maintenance of Lieutenant B.'s plane, and that maybe he missed something that caused Lieutenant B. to be unable to maneuver out of the way. He expressed guilt over the idea that he may have been responsible for a malfunctioning of the plane. The Veteran reported that since his discharge from service, he had not received any treatment other than Clonazepam from his primary care physician at the VA since 1989. He also reported that he was prescribed Wellbutrin in the early 1980s or 1990s, but took it for one week and felt suicidal. He described his current symptoms related to the incident involving Lieutenant B., including continually re-experiencing this incident and having persistent memories of Lieutenant B. as well as having cold sweats, difficulty sleeping, and a fear of being on airplanes. The examiner diagnosed the Veteran with anxiety disorder not otherwise specified, and opined that it is as least likely as not that his anxiety is a result of his experiences in the military. The examiner further reported that a diagnosis of PTSD was not warranted. The examiner based this on the fact that there was no traumatic event that the Veteran witnessed and that the level of claimed symptoms was not congruent with his reported stressors. Given the medical and lay evidence outlined above, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's anxiety disorder not otherwise specified was incurred in active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Veteran's in-service stressor involving Lieutenant B. has been corroborated by credible supporting evidence, most notably by the NARA report confirming Lieutenant B.'s plane crash and capture on the same date in September 1972 that was documented by a relevant journal entry submitted by the Veteran. The examiner concluded that a diagnosis of PTSD was not warranted, but that a diagnosis of anxiety disorder was. Significantly, the examiner linked such disorder to the incident with Lieutenant B. Therefore, the Board concludes that service connection for anxiety disorder is warranted. Dysentery The Veteran's service treatment records document that he complained of stomach pains and diarrhea in July 1971, but no diagnosis was made. He again complained of diarrhea in December 1972, and an impression of viral gastroenteritis was rendered. His service treatment records are entirely silent for any complaints, findings, or treatment of dysentery. At a December 2010 VA psychiatric examination, the Veteran reported that he was treated for dysentery in Vietnam and was hospitalized for one week. The Veteran has not, at any time, described having any current symptomatology with regard to dysentery. As such, the Board finds that a VA examination is not required. In sum, the evidence of record fails to document any current disability of dysentery or any complaints, findings, or treatment of any symptoms of dysentery. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for dysentery is not warranted. ORDER Entitlement to service connection for an anxiety disorder is warranted. To this extent, the appeal is granted. Entitlement to service connection for dysentery is not warranted. To this extent, the appeal is denied. REMAND With regard to the claim for residuals of a head injury, the Board notes that the Veteran's service treatment records are negative for any complaints, diagnosis, or treatment of a head injury or any residuals thereof. In an August 2012 statement, the Veteran stated that he had treatment records showing chronic headaches which are related to a head injury in Vietnam. At present, the claims file does not contain any treatment records pertaining to headaches. On remand, all relevant treatment records should be obtained. After the above development is undertaken, the Veteran should be afforded an appropriate VA examination with medical opinion in order to determine whether he has any head injury residuals that are related to his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the claim for an initial compensable rating for bilateral hearing loss, the January 2013 appellant's brief asserted that the Veteran's service-connected bilateral hearing loss has progressively worsened since his last VA examination. The Board observes that the Veteran has not been afforded a VA audiological examination since March 2007. Therefore, the Board concludes that a current examination is warranted. Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action to request the Veteran to furnish the treatment records he claims that he has regarding chronic headaches related to an inservice head injury. 2. After completion of the above to the extent possible, the Veteran should be scheduled for an appropriate VA examination to determine the nature and likely etiology of any current head injury residuals. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Based on examination of the Veteran and review of the record, the examiner should then respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that any current head injury residuals are related to the claimed inservice head injury? The examiner should offer a rationale for all opinions given with reference to pertinent evidence. 3. The RO/AMC should schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral hearing loss. It is imperative that the claims file be made available to the examiner for review in connection with the examination. 4. After completion of the above, the RO/AMC should review the expanded record and readjudicate the issues remaining on appeal. If any issue on appeal remains denied, the RO/AMC should furnish the Veteran with an appropriate supplemental statement of the case, and the case should be returned to the Board after the Veteran is afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs