Citation Nr: 1310047 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 07-17 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for prostate cancer, to include as due to radiofrequency electromagnetic fields. 3. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, bipolar disorder, schizoaffective disorder, and an anxiety disorder with panic attacks. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1959 to June 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and January 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for the above claimed disabilities. The Veteran provided testimony during a personal hearing before a Decision Review Officer in March 2007. He provided testimony during a hearing before a Veterans Law Judge at the RO in July 2009 and before the undersigned at the RO in July 2012. Transcripts from each hearing are of record. During the July 2012 hearing, the Veteran stated that he did not have a seizure disorder and was instead claiming service connection for an anxiety disorder manifested by panic attacks. However, he stated that he did not want to withdraw the seizure disorder issue. Therefore, the Board will continue to adjudicate service connection for a seizure disorder. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim for service connection for PTSD and depression as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, bipolar disorder, schizoaffective disorder, and the anxiety disorder referenced in the July 2012 Board hearing, regardless of the precise diagnosis. The issues have been recharacterized accordingly. In July 2012, the Veteran submitted a waiver of local jurisdiction in regard to evidence he submitted directly to the Board following the last adjudication of the claim by the RO. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800 (2012). The issues of entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, bipolar disorder, schizoaffective disorder, and an anxiety disorder, and service connection for prostate cancer 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. FINDING OF FACT A current seizure disorder has not been demonstrated. CONCLUSION OF LAW The criteria for service connection for a seizure disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in September 2007, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provided ratings based on the rating schedule and was given examples of the evidence he could submit. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the September 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. In September 2009, the Social Security Administration (SSA) responded to a request for records by stating that the Veteran had never filed a disability claim and, therefore, there were no records available. In February 2011, the Veteran confirmed that he had never filed an SSA disability claim. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The threshold for getting an examination under the VCAA is low. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board acknowledges that the Veteran has not been afforded VA examination or medical opinion in response to his claim for service connection for a seizure disorder but has determined that no such examination or opinion is required. As explained below, there is no competent evidence of a current diagnosis or signs and symptoms of a current disability. The Veteran stated during the July 2009 and July 2012 Board hearings that he does not have a current seizure disorder. Accordingly, an examination is not required. The issue on appeal was previously before the Board in September 2009 and March 2012, when it was remanded for additional development. In accordance with the remand instructions relevant to the seizure disorder issue, it was confirmed that there were no outstanding SSA records, a supplemental statement of the case was issued in May 2011, and the Veteran was provided with the July 2012 Board hearing (with subsequent waiver of new evidence). Since the record reflects compliance with the September 2009 and March 2012 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Seizure Disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). To show a current disability for purposes of a claim for service connection, it is not necessary that the disability be present on the most recent examination. Instead, it need only be shown that the disability was present at some point since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319 (2007). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran filed his claim for service connection for a seizure disorder in June 2007. Since then, the evidence, including VA and private treatment records, does not demonstrate a current seizure disorder or any treatment for a seizure. Moreover, during the July 2009 Board hearing, the Veteran stated that he did not currently have a seizure disorder. When asked if he had ever had seizures, he stated that he had one episode in 2003 that he thought was a seizure but he did not seek medical treatment. Since he filed the claim, he has had panic attacks and he did not think he would have seizures any more. In the July 2012 hearing, the Veteran stated that he did not have a current seizure disorder but instead was referring to panic attacks. As he stated that he did not want to withdraw the issue regarding a seizure disorder, the claim has been continued. As the Veteran has not submitted any other lay or medical evidence of a current disability related to seizures at any time during the current appeal, the weight of the evidence is against the claim, and it must be denied. 38 U.S.C.A. § 5107(b) (West 2002). The Board assures the Veteran that the issue regarding panic attacks will be considered in connection with the issue of service connection for an acquired psychiatric disability. ORDER Service connection for a seizure disorder is denied. REMAND As noted above, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that indicate that a current disability may be associated with military service includes credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran contends that he incurred prostate cancer due to exposure to radiofrequency electromagnetic fields from the radar machines he worked with and around during service. The Board finds that a VA examination must be provided to determine whether his prostate cancer and any residuals are etiologically related to service, including his work with radar. During the Board testimony, the Veteran also provided additional information regarding his in-service stressors, which he associated with his current psychiatric disabilities. He stated that the stressor involving the snapped cable which injured or killed multiple service members occurred to the best of his recollection during the September to November 1962 timeframe, around the time of the October 1962 Cuban Missile Crisis. Upon further review of the record, the Board also finds that during the July 2009 Board hearing he stated that the USS Saratoga was near Guantanamo Bay, Cuba, when the stressor event occurred. A 1962 Ship History provided by the United States Department of the Navy indicated that the USS Saratoga was around Guantanamo Bay in December 1962. To this point, the attempts to verify the stressor have involved the date of April 1962 the Veteran previously identified. However, he stated during the July 2012 Board hearing that he had felt pressure to just pick a date at that time and he was thinking the event actually took place towards the end of 1962. Therefore, upon remand, the Board requests that the steps made for verification of the stressor are repeated, this time focusing first on the September and October 1962 time period and the November and December 1962 period. This is to include searching the ship's deck logs. In addition, regardless of whether a stressor can be verified, a VA examination is required to determine the etiology of the acquired psychiatric disabilities currently diagnosed, which include PTSD, depression, bipolar disorder, and schizoaffective disorder and the claimed anxiety disorder with panic attacks. In this regard, the Board notes a June 2007 private opinion in which the examiner found that the Veteran's PTSD is directly linked to his military service and that his depression pre-existed and was exacerbated by service. Unfortunately, the opinions were not supported by a rationale and are inadequate. Therefore, the Veteran should be provided with a VA examination to determine the etiology of any currently diagnosed acquired psychiatric disabilities. Accordingly, the case is REMANDED for the following action: 1. Contact the Joint Services Records Research Center (JSRRC), National Archives, and any other appropriate source to attempt to verify the Veteran's stressor regarding the snapped cable and planes crashing for the period from September to October 1962 and then November to December 1962. 2. Once the above development has been completed, provide the Veteran with a VA examination with a qualified physician to determine whether the Veteran's prostate cancer or any residuals are related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that prostate cancer or any residual had onset in service or is otherwise related to a disease or injury in service, including the reported exposure to radar during service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Once all relevant and available records have been associated with the claims file, the Veteran should be scheduled for a VA psychiatric examination. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If not, the examiner should specify which of the criteria are not met. If the Veteran does meet the PTSD criteria, the examiner should specify the stressor(s) supporting the diagnosis and provide a detailed description of the stressor(s). The examiner should also provide an opinion as to whether any other currently diagnosed psychiatric disability, to include depression, bipolar disorder, schizoaffective disorder, and the claimed anxiety disorder with panic attacks at least as likely as not (e.g., a 50 percent or greater probability) had its onset in service or is the result of a disease or injury in service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 4. The RO/AMC should then review the examination reports to ensure that they contain the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the RO/AMC should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2012). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs