Citation Nr: 1306480 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 06-33 797 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as adjustment disorder. ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to September 2004. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO, inter alia, denied service connection for a back disability and for adjustment disorder. In May 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in October 2006. In his substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge at the RO. However, in correspondence received in January 2007, the Veteran cancelled his hearing request. In August 2008, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny each claim (as reflected in an April 2010 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In September 2010, May 2011, September 2011 and April 2012, the Board again remanded the claims to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, the AMC continued to deny each claim (as reflected in April 2011, September 2011, February 2012, and October 2012 supplemental SOCs (SS)Cs), respectively. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal have been accomplished. 2. Although service treatment records document that the Veteran was seen and treated for back pain, there is no documented evidence of any musculoskeletal complaints or diagnosed back disability for many years after service, and the most probative medical opinion on the question of whether there exists a medical nexus between the Veteran's low back disability diagnosed many years post service and service weighs against the claim. 3. Although service treatment records document in-service psychiatric treatment, there is no evidence of a chronic psychiatric disability at any point pertinent to the claim on appeal that has been medically attributed to the Veteran's military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for an acquired psychiatric disability, claimed as adjustment disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2004 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection for low back and psychiatric disorders, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The May 2005 RO rating decision reflects the initial adjudication of the claims after issuance of the October 2004 letter. Post rating, a February 2007 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the February 2007 letter, and opportunity for the Veteran to respond, several SSOCs reflect readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service treatment records, and the report of December 2004 and March 2009 VA examinations. Also of record and considered in connection with the appeal are written statements provided by the Veteran. The Board also finds that no additional RO action to further develop the record in connection with the claims for service connection for a back disorder or psychiatric disorder is warranted. The Board acknowledges that the appeal has been remanded several times, and at this time the Veteran's whereabouts are unknown, as he has not informed VA of his current address. All correspondence from VA, to include correspondence from the Board has been returned as undeliverable. See May 2012 memorandum to the file. The Board points out that, in order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Swann v. Brown, 5 Vet. App. 229, 233 (1993). In this case, the Board's instructions have been complied with to the extent possible, as the AMC attempted to notify the Veteran of scheduled VA examinations, as well as informing him to submit any additional pertinent evidence. Under these circumstances, no further RO action in this regard is required. Furthermore, as the Board's attempts to further develop the record have been frustrated by the RO's inability to locate the Veteran, the claims will be considered on the basis of the evidence of record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is 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 analysis will focus specifically on what the evidence shows, or fails to show, with respect to these claims. The Veteran contends that he has current low back and psychiatric disorders that are related to low back and psychiatric complaints noted during service and that he has experienced back pain and depression ever since service. The Veteran's service treatment records reflect complaints of back pain in April 2004. A May 2004 record reflects that the back was still locking up and in pain. On both occasions, the Veteran complained of bilateral foot pain and had been prescribed ibuprofen. June 2004 treatment records reflect in-patient psychiatric treatment for adjustment disorder and depression. On December 2004 VA orthopedic examination, the Veteran stated that his back problem started in service while doing field exercises, loading a truck, and lifting boxes, and that it recurred in June 2004. He complained of intermittent pain that is aching and sharp and occurs with physical activity. He also complained of some spasms. He stated that bending makes it worse and ibuprofen and rest relieve it. Examination of the cervical spine revealed normal range of motion with no pain. Examination of the thoracolumbar spine also revealed normal range of motion but there was some mild pain throughout range of motion. X-rays of the cervical and lumbar segments of the spine showed no significant abnormalities, but x-rays of the thoracic segment of the spine showed very mild anterior wedging of T8 and T9. The diagnosis was thoracolumbar strain. On December 2004 VA psychological examination, the Veteran reported feeling paranoid and anxious. He stated that he was currently not receiving any psychiatric treatment. Mental status evaluation revealed that the Veteran was alert and oriented in all spheres; he was appropriately groomed and exhibited good hygiene; there was no disorder of speech; his thought process was coherent; his affect was full range and appropriate; there was no delusional thinking; his memory for recent and remote events was intact; his judgment was appropriate and was not impaired. The diagnoses were adjustment disorder with depression in remission; generalized anxiety disorder; and alcohol abuse, episodic, in remission. The Global Assessment Functioning score was 65. The examiner's impression was that the adjustment disorder with depression noted in service was currently in remission and resolved. He also noted that the current diagnosis of generalized anxiety disorder had no relation to the primary in-service diagnosis of adjustment disorder, and therefore was not related to the Veteran's military service. In a May2009 addendum opinion regarding the Veteran's back disorder, the examiner opined that the Veteran's chronic low back strain was less likely than not caused by or as a result of the low back pain noted in service. The examiner indicated that there was no further treatment found in the records other than the April and May 2004 records. The evidence of record clearly reflects that the Veteran currently has low back and psychiatric disorders-diagnosed as thoracolumbar strain and generalized anxiety disorder, respectively. As such, the element of current disability, with respect to each claim, has been met. The record also reflects that the Veteran was seen and treated in service for low back complaints, as well as adjustment disorder with depression; however, there is no indication that such disorders were chronic in nature, and in fact appeared to have resolved. Indeed, the Veteran was seen in April and May 2004 for low back pain without any further follow-up. Additionally, the Veteran was hospitalized in June 2004 for adjustment disorder with depression, however, he was treated and then returned to duty. See June 21, 2004 record. As no chronic low back or psychiatric disability was demonstrated during service. , what is needed to establish service connection for each claimed disorder is competent (medical) evidence that relates such disability to his service. That is a medical question. Here, however, the only competent (medical) opinion evidence on the question of whether there exists a medical nexus between the Veteran's current back or psychiatric disability and service consists of the opinions of the December 2004 and May 2009 VA examiners, each of whom opined, in essence, that the Veteran's current disabilities were unrelated to his service. There is no contrary opinion-i.e., one that, in fact, supports a finding of a medical relationship between current disability and service-for either disability for which service connection is sought. The Board acknowledges the Veteran's own contentions that his current low back and psychiatric disorders are related to the back and psychiatric complaints noted in service. In this regard, the Board notes that as a layperson, the Veteran is competent to provide testimony or statements relating to symptoms or facts of events he has observed and is otherwise within the realm of his personal knowledge,. See e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent, under certain circumstances, to establish medical etiology or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Veteran is not competent to establish that which would require specialized knowledge or training, such as medical expertise. See 38 C.F.R. § 3.159 (2012); see also See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, the Board points out that neither of the current disabilities for which service connection is sought is one capable of lay observation. As such, the Board finds the question of whether there exists a medical relationship between each current disability and the Veteran's military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that, as a lay person, the Veteran's statements regarding causation to be of no probative value, as he is not competent to opine on such a complex medical question. In this regard, as noted, there are no medical opinions that relate the Veteran's current back and psychiatric disorders to the complaints noted in service. And, while the Veteran may be competent to describe his symptoms since service, he is not able to attributable any such symptoms to a particular disorder. Thus, service connection by way of continuity of symptomatology is also not supported by the evidence in the record. Based on all the foregoing, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran's current low back or and psychiatric disability is etiologically related to his military service, to include the complaints noted therein. As such, the benefit-of-the- doubt doctrine is not for application, and each claim on appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a back disability is denied. Service connection for an acquired psychiatric disorder, claimed as adjustment disorder is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs