Citation Nr: 1310132 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-42 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for Dupuytren's contracture disease of the hands. 2. Entitlement to service connection for posttraumatic stress disorder. 3. Entitlement to service connection for anxiety disorder. 4. Entitlement to a compensable rating for residuals of a stab wound before June 14, 2007, and a rating higher than 10 percent thereafter. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran had requested a hearing before a Veterans Law Judge. In September 2011 in writing the Veteran withdrew his request for a hearing. The claim of service connection for anxiety disorder and the claim for increase for residuals of a stab wound are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Dupuytren's contracture disease of the hands was not shown in service and is unrelated to an injury, disease, or event in service. 2. Posttraumatic stress disorder is not currently diagnosed. CONCLUSIONS OF LAW 1. The criteria for service connection for Dupuytren's contracture disease of the hands are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002) 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for service connection for posttraumatic stress disorder are not met. 38 U.S.C.A. §§ 1110, 5107, (West 2002) 38 C.F.R. §§ 3.303, 3.304 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letters in November 2007 and in January 2008. As for the content and the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran has not been afforded a VA examination for the claim of service connection for Dupuytren's contracture disease. A VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. 38U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the threshold requirement for an examination has not been met. The Veteran was afforded a VA examination for posttraumatic stress disorder. As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted 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). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) , that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Unless posttraumatic stress disorder is diagnosed in service and the in-service stressor is related to service, or the in-service stressor is related to combat or to fear of hostile military or terrorist activity, or to a prisoner -of-war experience, or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that medical nexus evidence is required for credible supporting evidence in a personal assault case). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran does not assert that he was in combat in Vietnam, and the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Dupuytren's Contracture The service treatment records are silent as to any diagnosis of or treatment for Dupuytren's contracture. On separation examination, the upper extremities were normal. After service, VA records show that in September 1999 it was noted that the Veteran had undergone a Dupuytren's contracture release. In November 2003, there was a long history of Dupuytren's contracture disease. In September 2007, the Veteran stated he began to have cramps in his hands and difficulty opening his hands in service, which he associated with the onset of Dupuytren's contracture disease. In order to establish service connection, there must be evidence of an incurrence of a disorder in service, a present disability and a nexus between the two. In this case, Dupuytren's disease was first documented 1999, nearly thirty years after service and the Veteran has not submitted any medical evidence that links Dupuytren's contracture disease to an injury, disease, or event in service. As a lay person, the Veteran is competent to describe symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) it was held that a lay person can speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. The Veteran is competent to report that he experienced hand pain in service. However, no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to identify the presence or diagnosis of Dupuytren's contracture disease, which is not capable of lay observation alone. The Veteran is not competent to determine that hand symptoms in service were related to Dupuytren's contracture disease. There is no competent medical evidence which demonstrates a relationship between the Veteran's claimed in-service symptoms and the current disability. For the showing of a chronic disability in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time. Establishing service connection based on continuity of symptoms requires (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. In this case, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because Dupuytren's contracture is not a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013)(The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases.) 38 C.F.R. §§3.303(b), 3.309(a). In sum, the Veteran is not competent to establish a causal relationship between the present disability and an injury, disease, or event in service, the so-called "nexus" requirement. As the evidence of record demonstrates neither evidence of Dupuytren's contracture disease in service nor competent evidence of a relationship between the Veteran's current disability and service, service connection is not warranted. The preponderance of the evidence is against the claim for service connection for Dupuytren's contracture disease and there is no doubt to be resolved and service connection is not warranted. Posttraumatic Stress Disorder The Veteran asserts that he has posttraumatic stress disorder due to the stabbing in service. The service treatment records show that the Veteran reported nervous trouble on the separation examination. After service on VA examination in June 2008, posttraumatic stress disorder was not diagnosed. In order to establish service connection for posttraumatic stress disorder (PTSD), there must be a diagnosis of PTSD in accordance with the DSM IV, credible supporting evidence that the claimed in service stressor occurred; and medical evidence of a link between current symptomatology and the claimed in-service stressor. Here, the evidence does not show that PTSD has been diagnosed and the Veteran is not competent to diagnose PTSD. A current disability is a prerequisite for service connection and there can be no valid claim for service connection in the absence of proof of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for PTSD is not warranted. ORDER Service connection for Dupuytren's contracture disease is denied. Service connection for PTSD is denied. REMAND On the claim of service connection for anxiety disorder, the Veteran was afforded a VA examination in June 2008. The VA examiner determined that the generalized anxiety disorder was not related to service. In October 2010, a psychiatrist stated that it was as likely as not that the Veteran's anxiety symptoms were related to his in-service stabbing. As the evidence of record is insufficient to decide the claim further development under the duty to assist is needed. On the claim for increase for residuals of a stab wound, the Veteran asserts that he has gastrointestinal problems due to the stab wound. On VA examination in September 2007, the VA examiner did not address whether the Veteran's abdominal symptoms were secondary to the service-connected stab wound. As the examination was inadequate, a new examination under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA psychiatric examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), or less likely than not (probability less than 50 percent) that the current anxiety disorder is related to the stabbing incident in service. The Veteran's file must be provided to the VA examiner for review. 2. Afford the Veteran a VA examination to determine: Whether the Veteran has additional abdominal disability due to the service-connected stab wound. The Veteran's file must be provided to the VA examiner for review. 3. Thereafter adjudicate the claims. If any benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case to and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs