Citation Nr: 1309541 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 09-22 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for status post-operative atrial septal defects. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from December 1959 to November 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In January 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The issue that has been developed for consideration here is service connection for PTSD. However, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). It appears that VA medical records subsequent to the July 2008 VA psychological examination, report panic disorder related to the Veteran's service MVA. Accordingly, the Board has recharacterized the issue on appeal. The Board is remanding for additional development the issues of service connection for a psychiatric disorder to include PTSD and status post-operative atrial septal defects to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran's current low back disorder is related to his military service, including a service motor vehicle accident (MVA); a chronic low back disorder is first shown many years after service. CONCLUSION OF LAW The Veteran's back disorder was not incurred in or aggravated by his military service; nor may service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(2012). The 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). Compliance with the first Quartuccio element requires notice of these five elements. See id. at 486. Here, in a December 2007, and March 2008, VCAA notice letters informed the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and the Board concludes that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The Veteran's STRs and available post-service VA medical records have been obtained and associated with the claims file. The Veteran has reported additional private medical treatment for injuries that he sustained in a MVA during service. The RO has attempted to retrieve these records, but their attempts have not been successful. The Veteran was formally notified of their inability to obtain those records, most recently in May 2008. The RO has also obtained the Veteran's Social Security Administration (SSA) records. The Veteran has not been afforded a VA examination regarding his low back disorder. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, though, simply stated, the standards of McLendon are not met with respect to this claim. The evidence does not show a back disorder during service, including as a result of the service MVA, nor is there competent evidence to suggest an association between his current chronic low back disability and his military service or a continuity of symptoms. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Board concludes that the duty to assist has been satisfied with respect to obtaining relevant evidence on the Veteran's behalf. Id. Relevant Law and Regulations Service connection may be granted on a direct basis for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for certain specified chronic diseases, such as degenerative joint disease or arthritis, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, --- F.3d ----, No. 2011-7184, 2013 WL 628429 *5 (Fed. Cir. February 21, 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added]. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Analysis The Veteran contends that his current low back disorder is related to an automobile accident that he was involved in during his military service. Review of the Veteran's service personnel records confirm in December 1961, while on leave, he was involved in an automobile accident. The Veteran's service treatment records (STRs) are absent for contemporaneous findings regarding the automobile accident. Submitted by the Veteran is a statement from a U.S. Coast Guard physician, erroneously dated January 5, 1961, rather than January 5, 1962. In the statement, the physician reported that in late December 1961, the Veteran was involved in a two-car head-on collision sustaining multiple abrasions and a cerebral concussion. The statement does not reference any back injuries sustained by the Veteran. The Veteran's STR's including his discharge physical examination records are absent for any complaints, findings, or diagnoses referable to the low back, including as a result of the MVA accident. In January 2002, in conjunction with treatment for another physical disorder, private X-rays of the lumbar spine reveal scoliosis, L4-5 and to a lesser extent L3-4 intervertebral disc space narrowing, and degenerative joint disease. In a February 2008 statement, the Veteran reported that a likely cause of his perennial back trouble was the service MVA. In January 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. See Hearing Transcript (T.) The Veteran stated that in December 1961 while on leave from his duty assignment in the Coast Guard, going 50 miles per hour, he was hit head-on by a car coming the opposite way. T at 3. He testified that he received contusions and abrasions as a result of the accident. T at 3. He stated that in the accident, he collapsed on the steering wheel hitting his chest, head, and hands. T at 5. He was treated and released from a hospital. T at 5. The Veteran reported that he had back problems in the accident, but he did not complain. T at 8. The Veteran testified that the first inclination that he had a back problem connected to the accident was when he was medically checked for a captaincy of vessel in the Gulf of Mexico, probably in the 1995 to 2002 range. T at 9. He stated that he was questioned if he had ever been in an accident because his vertebrae had shifted. T at 9. He stated that it was a long time after the accident. T at 9. The Board has reviewed the evidentiary record and concludes that service connection for a back disorder must be denied. The Veteran's service records confirm that in December 1961, he was involved in a MVA, and medical records from that time show that he did sustain injuries in the accident. However, clinical records from the time of the accident do not reveal any findings regarding injuries to the Veteran's back, nor do the Veteran's STRs prior or subsequent to the MVA show any complaints, findings, or diagnoses referable to a back disorder or a back injury, including due to the service MVA. It is important to point out that the first evidence of a the Veteran's back pathology was in 2002 when during treatment for another physical disorder, scoliosis, and degenerative disc and joint disease of the lumbar spine is shown. The Veteran's chronic low back disorder is first shown more than 40 years after his military service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Also, the record does not show degenerative joint disease of the lumbar spine within one year of the Veteran's service discharge. As such, this does not warrant the presumption of service connection. 38 C.F.R. §§ 3.307, 3.309(a). The Board acknowledges that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. Again, the first evidence of any back pathology for the Veteran is in 2002, and there is no evidence of continuity of symptomatology. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, degenerative joint and disc disease and scoliosis, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Id. At the January video conference hearing the Veteran testified that from the earliest in 1995 to 2002 he had an inclination that his back problems were related to the service MVA, when at a physical examination for employment he was informed that his vertebrae had shifted, and he was questioned whether he had been in an accident. He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Further, the Veteran's assertions are outweighed by the lack of any medical evidence showing a relationship between his current back disorder and his military service, including the service MVA, as well as the medical evidence first showing a chronic back disorder decades after service. See Maxson, supra; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). There is absolutely no competent medical evidence that links the Veteran's chronic low back pathology to his military service, including the service MVA. In sum, the Board finds that there is no evidence of a back disorder during the Veteran's military service, nor is a chronic back disorder, degenerative joint disease, shown within one year after service. There is no continuity of symptomatology here, nor is there is competent medical evidence linking the Veteran's current back disorder to his service, including the service MVA. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for a back disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a back disorder is denied. REMAND Among the remaining issues on appeal is service connection for a psychiatric disorder to include PTSD, claimed as secondary to a MVA that the Veteran sustained during his military service. The Veteran's service records confirm that in December 1961, while on leave, he was involved in a two-car head-on collision, and he sustained multiple abrasions and a cerebral concussion. In the Veteran's service discharge Report of Medical History, it was affirmatively indicated that he had or had had nervousness. In the medical summary it was reported that the Veteran had been nervous since the accident. The interim record is absent for any pertinent findings for many years. VA clinical records in October 2007 report the Veteran's medical problems included recurrent, major depressive disorder, in partial remission. His anxiety complaints were also reported at that time. In a July 2008 VA examination for PTSD, it was indicated that the Veteran listed his December 1961 automobile accident as his only traumatic event. In commenting on PTSD, the examiner stated that it was questionable whether the Veteran's car accident met (PTSD) criteria A; that he did not meet any symptoms for avoidance of stimuli associated with the trauma; and that regarding persistent symptoms of increased arousal, the only symptom was difficulty concentrating. It was concluded that did not meet the criteria for PTSD. The diagnoses for Axis I were: Adjustment disorder with anxiety; pathological gambling in remission. VA mental health records dated from November 2008 through November 2009 show that the Veteran received treatment for panic disorder without agoraphobia, and an episode of severe major depressive disorder. It was reported that the Veteran had prolonged anxiety with episodic panic when driving, associated with the after affects of his 1961 MVA (motor vehicle accident.) The Veteran also seeks service connection for post-operative atrial septal defect due to the service MVA. The Veteran's STRs are absent for any complaints, findings, or treatment referable to an atrial septal defect, or any cardiovascular disorder. Many years later, VA clinical records show that the Veteran has received treatment for cerebro and cardiovascular disorders. VA records show that in October 2007, the Veteran had surgery for an atrial septal defect closure. In an October 2007 statement, a VA Director of Cardiac Catheterization laboratory and Vascular Medicine reported that in September 2007, the Veteran was treated at a VA facility for a coronary artery spasm, and then for ST-elevation MI and ventricular fibrillation cardiac arrest. It was reported that without evidence of significant coronary he had his septal atrial device explanted and operations for atrial septal defects. The Veteran had also received an implantable defibrillator. It was stated that one cause of the Veteran's coronary vasospasm could be related a right to left shunt through the atrial defects. The VA clinician then stated that the Veteran's December 1961 car accident resulted in a forceful collision of the steering wheel column into his chest, and it was plausible that the atrial septal defects other than the persistent foramen ovale, could be the result of the car accident. Medical information included in the claims folder suggests that an atrial septal defect is a congenital heart defect. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. However, determining if the Veteran's septal defect is congenital disorder or not remains a medical question. The Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further, according to the VA General Counsel, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Therefore, if the septal defect is a disease or injury, an opinion may be required as to whether it was as likely as not aggravated by his active service beyond its natural progression. If instead it is a congenital defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during his service that resulted in disability apart from the congenital or developmental defect. Medical information clarifying whether the Veteran's atrial septic defect is a congenital or superimposed due to the Veteran's service MVA is necessary for appropriate disposition of the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA psychiatric examination to determine the nature and etiology of the Veteran's psychiatric disorders. This examination should include any necessary diagnostic testing or evaluation. Based on a mental status evaluation and comprehensive review of the claims file, including a copy of this remand, determine whether or not any current acquired psychiatric disorder was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to the Veteran's military service. Specifically the examiner should address whether any current acquired psychiatric disorder, to include PTSD was the result of the service MVA. The examiner must discuss the medical rationale of the opinion, regardless of whether it is favorable or unfavorable to this claim, if necessary citing to specific evidence in the record. 2. Also schedule a VA cardiovascular examination for clarification concerning whether the Veteran's atrial septal defect is a congenital or developmental "disease" or "defect." If a disease, an opinion is needed concerning the likelihood (very likely, as likely as not, or unlikely) it was aggravated by the Veteran's period of active military service beyond its natural progression. If instead is a congenital defect, an opinion is needed as to the likelihood (very likely, as likely as not, or unlikely) it was subject to a superimposed disease or injury during his military service that resulted in additional disability apart from the congenital or developmental defect. In making this determination of whether this disability was incurred during the Veteran's military service or is otherwise related or attributable to his service, the examiner must consider the December 1961 MVA where the Veteran sustained physical injuries. Also, provide comment on the October 2007 statement from the VA clinician regarding the relationship between the Veteran's atrial septal defect and the December 1961 MVA. The examiner must discuss the medical rationale of the opinion, regardless of whether it is favorable or unfavorable to this claim, if necessary citing to specific evidence in the record. 3. Then readjudicate the remaining claims in light of all additional evidence. For any claim that is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any remaining claim. The appellant 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs