Citation Nr: 1309840 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 11-23 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) (also claimed as depression, mood swings, and sleep disorder/restless leg syndrome). 2. Entitlement to service connection for tremors, including as secondary to PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty for training in the United States Naval Reserve from March 1951 to July 1953 and on active duty in the United States Navy from July 1953 to July 1955. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire (RO). In April 2012, the Veteran and a friend testified by videoconference hearing from Manchester, New Hampshire before the undersigned Veterans Law Judge (VLJ) sitting in Washington, D.C. A copy of the hearing transcript is of record. In August 2012, the Board denied service connection for bilateral hearing loss and remanded the issues listed on the title page to the RO to obtain access to recent VA treatment reports, which were subsequently added to the record. Consequently, there has been substantial compliance with the August 2012 remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999) (Holding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the remand directives.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran is not shown to have had combat with the enemy while serving on active duty. 2. The competent evidence of record does not contain a diagnosis of PTSD based on a corroborated in-service stressor. 3. The Veteran does not have a psychiatric disorder that is causally related to his active military service. 4. The Veteran does not have tremors that are causally related to his active military service or to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304 (2012). 2. The criteria for service connection for tremors, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 101, 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in March 2010, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the March 2010 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional relevant private evidence was subsequently added to the case after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Although no nexus opinion has been obtained on the issues of service connection for a psychiatric disability and for tremors, none is needed. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the appellant experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Because not all of these conditions have been met, as will be discussed below, a VA examination is not necessary. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed the four elements that must be considered in determining whether a VA medical examination must be provided as required by 38 U.S.C.A. § 5103A. Specifically, the Court held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. The medical evidence on file does not show a psychiatric disability or tremors during service. The separation examination is negative for both. There is no credible verification of a stressor and no credible information regarding an event, injury, or disease in service, and no competent and credible evidence that indicates a nexus to service for either disability. The initial post-service evidence of a psychiatric disability or tremors was not until 2010, which is many years after service discharge. There is no diagnosis of PTSD on file. Moreover, there is no nexus opinion in favor of a claim for service connection for either a psychiatric disability or tremors. Consequently, the Veteran has not presented evidence indicating a nexus between any current psychiatric disability, or tremors, and his military service. Thus, there exists no reasonable possibility that a VA examination would result in findings favorable to the Veteran. Accordingly, the Board finds that an etiology opinion is not necessary. See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims, including at his June 2012 videoconference hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether any current disability is related to service. They also asked questions to draw out the current state of the Veteran's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims The Veteran seeks service connection for a psychiatric disability, to include PTSD, and for tremors. He has contended, including at his June 2012 videoconference hearing, that he has PTSD as a result of an incident in service when he accidently slipped off of a reef and fell in the water and would have drowned if he had not been pulled to safety. Service connection may be granted for disability or injury incurred in or aggravated by active military service.38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). With regard to PTSD, requisite for a grant of service connection is medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). With regard to the second PTSD element, that of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary.38 C.F.R. § 3.304(f). Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).In such cases, the record must contain service records or other statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Once independent verification of the stressor event has been submitted, the Veteran's personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred may strongly suggest that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). Of particular pertinence to this matter, it has been held that a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Although the Courts have also held that laypersons are competent to report symptoms regarding tinnitus as here, the determination of competency is different than that of credibility. See Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). As noted above, the Veteran has asserted, including at his June 2011 RO hearing and June 2012 videoconference hearing, that he has PTSD as a result of accidently slipping off a reef in Guam and almost drowning because he could not swim. There were no complaints or findings of a psychiatric disorder in service, including on discharge medical evaluation in July 1955. The initial medical evidence of a psychiatric problem was in March 2010, over 54 years after service discharge, when the Veteran was diagnosed with an anxiety disorder. The medical evidence on file does not contain a diagnosis of PTSD. Parkland Medical Center records dated in September 1998, August 2001, and July 2003 reveal problems with bronchitis; there is no notation of a psychiatric problem or tremors. VA treatment records dated from March 2010 to September 2012 reveal that a PTSD screening in March 2010 was negative; an anxiety disorder was diagnosed in March 2010 and an anxiety/panic disorder was diagnosed in April 2010. The Veteran's claimed stressor have not been corroborated. According to an August 2010 Memorandum from a Joint Services Records Research Center (JSRRC) Coordinator, the Veteran's claimed stressor is not of the type that can be corroborated by JSRRC or the Regional Office Coordinator. There is no evidence that the Veteran served in combat, and the Veteran does not contend that he has a service stressor due to combat. In order to establish service connection for a veteran who had no combat experience, as here, there must be independent evidence of record to corroborate the Veteran's statement as to the occurrence of a claimed stressor. See Doran, 6 Vet. App. at 288-89. The Veteran's lay statements alone are not enough to establish the occurrence of an alleged stressor. See Moreau, 9 Vet. App. at 395; Dizoglio, 9 Vet. App. at 166. In this case, there is no diagnosis of PTSD and no credible evidence to establish the incurrence of a service stressor. Moreau and Cohen, above. Consequently, all of the elements needed to support a diagnosis of PTSD have not been shown in this case. Service connection for PTSD must therefore be denied. Service connection for a psychiatric disorder other than PTSD is also not warranted because there is no notation of a psychiatric problem until over 54 years after service discharge. Additionally, there is no nexus opinion on file showing the recently diagnosed anxiety disorder is causally related to service. With respect to the claim for tremors, to include as secondary to PTSD, there was no notations of tremors in service or for many years after discharge. Restless leg syndrome was diagnosed in April 2010. There is no nexus opinion on file linking tremors to service. Additionally, as the Veteran is not service connected for PTSD, he cannot be service connected for tremors as secondary to PTSD. See 38 C.F.R. § 3.310 (2012). Consequently, service connection for tremors is not warranted on either a direct or secondary basis. The lay statements from the Veteran, and the testimony from the Veteran and his friend, have been taken into consideration in this decision. Although the Veteran is competent to report his subjective symptoms and his friend is competent to report her observations about the Veteran's physical and mental condition, they are not competent to diagnose or opine that he has a particular psychiatric disorder or tremors that began after service discharge due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in cases involving the etiology of a psychiatric disability or of tremors. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); See also Jandreau v. Nicholson, 492 F.3d. 1272 (Fed. Cir. 2007) (holding that some types of disability are capable of law observation (a broken bone) and other types are not (cancer)). In this case, the Veteran's psychiatric disabilities and tremors are not of the nature that can be diagnosed or linked to service by a layperson. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. Entitlement to service connection for tremors, to include as secondary to PTSD, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs