Citation Nr: 1306607 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-37 476 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder. 2. Entitlement to service connection for a throat disorder, to include as due to asbestos exposure. 3. Entitlement to service connection for a stomach disorder, to include as due to asbestos exposure, ill-fitting dentures, and/or the Veteran's service-connected right ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran had active service from October 1954 to August 1958. This matter initially came before the Board of Veteran's Appeals (Board) on appeal from a August 2008 and September 2008 rating decisions of the RO. In March 2011, the Veteran testified at a hearing held via videoconference before another Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. In January 2012, the Veteran was notified that this VLJ was no longer employed by the Board and was afforded the opportunity for a new hearing. That same month, the Veteran declined the opportunity and asked that his appeal be considered based on the record. In February 2012, the Board remanded the matters captioned hereinabove for additional development. The development is complete as to one of the claims, and that claim is now ready for appellate disposition. The Board notes that, in February 2012, the issue of service connection for a disorder of the left little finger was also in appellate status. This claim was subsequently granted in a rating decision of October 2012. The Board notes that, in the development of this claim, it has been variously characterized as involving either the fourth finger or the little finger of the left hand. However, at the March 2011 hearing, the Veteran clarified that he seeks service connection for the little finger. See Hearing Transcript, p. 56. Indeed, in a January 2013 brief, the Veteran's representative noted the claim had been granted in full by the October 2012 rating decision. As such, it is no longer in appellate status and will not be addressed below. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The Board has considered documentation included in the Virtual VA system in reaching the following determination. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last Supplemental Statement of the Case. As noted in the recent remand, the issue of entitlement to dental treatment has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and again refers this matter to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for a psychiatric disorder and a stomach disorder to include a hiatal hernia and GERD are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran currently is not shown to have a chronic throat disorder. CONCLUSION OF LAW The Veteran does not have a throat disability that is due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in June 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded a personal hearing. He has been afforded VA examinations. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its February 2012 remand directives to the extent indicated. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ, afforded the Veteran the opportunity to submit any additional evidence pertinent to the claims, and provided a pertinent VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing service connection is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") In this case, the Veteran contends that, while on active duty in the Navy, he was exposed to asbestos and this caused him to develop a throat disorder. The service treatment records show that the Veteran sought treatment for a sore throat in November 1957. In February 1958, he was admitted to the hospital for acute tonsillitis. He was treated with penicillin, and there was a rapid improvement in symptoms. The treating physician found that his tonsils were apparently chronically diseased and should probably be removed when possible. He was discharged to duty in February 1958. His separation examination revealed no abnormalities in this regard. As for his contention of asbestos exposure, VA has already conceded some exposure to asbestos based on the Veteran's service on a ship from the era of World War II. See August 2008 Rating Decision. Despite this, the post-service medical evidence does not establish the presence of a current diagnosis. In April 2012, the Veteran was afforded a VA examination to address the issue. On examination, the only diagnosis pertaining to the throat found by the examiner was that of the February 1958 diagnosis of acute tonsillitis. The examiner indicated the Veteran did not have current chronic sinusitis, allergic rhinitis, non-allergic rhinitis, bacterial rhinitis, granulomatous rhinitis, chronic laryngitis, laryngecotomy, laryngeal stenosis, aphonia, a pharyngeal injury, a deviated nasal septum, an anatomical loss of part of the nose, benign or malignant neoplasms of the sinus, nose, throat, larynx, or pharynx, or any other diagnosis. The examiner concluded that the Veteran experienced a self-limited bout of tonsillitis in service, which was adequately treated and without sequelae or residuals, and unrelated to asbestos exposure or any other shipboard event. The record before the Board contains multiple medical records referable to VA treatment. These records are simply devoid of any diagnosis of a throat disorder. The closest record of treatment is a February 2010 record documenting a barium swallow, found in the Veteran's Virtual VA file. See CAPRI record set #7, p. 151 of 161. These results showed a small hiatal hernia, no esophageal strictures or masses, and mild esophageal dysmotility. Id. As discussed in the remand section below, the Veteran has a present diagnosis of gastroesophageal reflux disease (GERD), and the results of this study were found pertinent to that diagnosis. Following the study, reflux amelioration was discussed, and reflux dietary precautions were reviewed. Id. at 133. The prescribed treatment was an antireflux regimen. Id. The physician noted that if the symptoms did not resolve with the above after a reasonable clinical trial (60-90 days), referral to gastroenterology for their further work-up and management could be indicated. Id. However, in the Board's opinion, a diagnosis pertaining to the throat itself was not rendered in the February 2010 record, and as stated, the remainder of the medical record is silent for any other findings demonstrating any type of throat disorder. Based on this evidence, the Board finds that the Veteran currently does not meet the requirements for a current diagnosis of a throat disability. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). A current disability means a disability shown by competent medical evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). In the absence of a current diagnosis, the other elements of service connection need not be addressed and the Veteran's claim for service connection must be denied. In reaching this decision, while the Board has considered the Veteran's own contentions that he has a throat disorder related to asbestos exposure, he is not shown to possess any specialized training in the medical field to provide a competent medical opinion on this point. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, at the March 2011 hearing, the Veteran testified that, aside from the barium swallow, he has received no medical attention for his throat since service. Hearing Transcript, pp. 20-25. He also had not had his tonsils removed, or received any type of treatment related to a chronic throat disorder. Id. Thus, the Board finds that credible assertions sufficient to establish a continuity of symptomatology since service have not presented in the absence of a current diagnosis. Accordingly, on this record, service connection for a throat disorder is denied. ORDER Service connection for a throat disorder is denied. REMAND VA examinations are necessary in order to fairly decide the claims remaining on appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the claim of service connection for a psychiatric disorder, as directed in the February 2012 remand, in March 2012 a VA examination was conducted to address the etiology of the claimed condition. On examination, however, the examiner determined the Veteran did not have a diagnosable mental health condition. Specifically, the examiner noted no psychiatric hospitalizations or mental health treatment of any sort, negative PTSD and depression screens, no mental health complaints on annual checkups, and no mental health diagnosis on the Veteran's problem list. The Board's review of the medical record suggests otherwise. Numerous VA treatment records found in the Veteran's Virtual VA file show that the Veteran has been prescribed Citalopram Hydrobromide, 20 miligrams daily, for anxiety and depression. See, e.g., CAPRI record set #7, p. 8 of 161, June 2011. The records further show a diagnosis of sleep problems, mood problems, anxiety, and probable depression. See id., p. 44 of 161, November 2010. As such, a current diagnosis has been established for purposes of VA adjudication. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2009) (holding that the that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim is filed or during the pendency of that claim). Under these circumstances, the Board finds that the RO must obtain a supplemental medical opinion from the March 2012 VA examiner, if available. In rendering the supplemental opinion, the examiner should include a complete rationale for the opinions expressed. The RO should arrange for the Veteran to undergo new VA examination in connection with this claim only if the March 2012 VA examiner is not available, or the designated examiner is unable to provide the requested opinions without examining the Veteran. With regard to the claim for a stomach disorder, the Veteran has asserted that this disorder is secondary to his now service-connected right ankle disability. At his March 2011 hearing, the Veteran testified that his right ankle disability affected the way he walked and , in turn, had caused his stomach problems. See Hearing Transcript, pp. 25, 34-35. In April 2012, a VA examination was conducted. However, no opinion was requested or rendered on the issue of secondary service connection. Such an opinion must be sought before the claim can be fairly adjudicated. Accordingly, these remaining matters are REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take all indicated action to forward the claims file, to include a copy of this REMAND, to the VA examiner who prepared the March 2012 psychiatric report for an addendum opinion. The examiner should opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's currently diagnosed anxiety and depression are due to a psychiatric disability that had its clinical onset during service. The examiner should note that current diagnoses of anxiety and depression have already been conceded by VA for purposes of adjudication. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA psychiatric examination to obtain an opinion responsive to the questions posed hereinabove. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinions, and the examination report should include discussion of the Veteran's documented medical history and assertions. 2. The RO also should take all indicated action to forward the claims file, to include a copy of this REMAND, to the VA examiner who prepared the April 2012 gastrointestinal report for an addendum opinion. The examiner should opine as to whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that any current gastrointestinal disability including the recently noted hiatal hernia or GERD, is due to any event or incident of the Veteran's period of active service or otherwise was caused or aggravated by his service-connected right ankle disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (as revised effective in October 2006). The Veteran's current diagnoses are noted to include a hiatal hernia and GERD. If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA gastrointestinal examination to obtain an opinion responsive to the questions posed hereinabove. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinions, and the examination report should include discussion of the Veteran's documented medical history and assertions. 3. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the examinations, the RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs