Citation Nr: 1311429 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 05-35 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for otitis media. 2. Entitlement to service connection for residuals of Barrett's esophagus, to include as due to in-service herbicide exposure, or, in the alternative, claimed as due to service-connected migraine headaches, gastritis, residuals of an appendectomy with scarring, and/or posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1970, to include service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Veteran subsequently perfected an appeal to the Board and the case was transferred to the Board for appellate proceedings. In his October 2005 substantive appeal (on VA Form 9), the Veteran requested a Board hearing; however, he withdrew his request in a December 2006 statement. The Board subsequently remanded the claims on appeal for further development in January 2009 and March 2012. The Board's prior remand directives and the subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board. During the pendency of the present appeal, the Veteran also perfected to the Board claims to establish service connection for gastritis and headaches. However, in a November 2010 rating decision, the RO established service connection for these disorders. Concerning the Veteran's gastritis, an initial, non-compensable (0 percent) evaluation was assigned, effective from July 14, 2003. With regard to the Veteran's service-connected migraine headaches, staged ratings were created; an initial evaluation of 10 percent evaluation was assigned, effective from July 14, 2003, and a 50 percent initial, staged evaluation was assigned from June 16, 2009. The Veteran did not express disagreement with either the initial evaluations or effective dates assigned. Therefore, those claims have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also, 38 C.F.R. § 20.200 (2012). As will be further discussed below, a June 2010 VA examination report notes that the Veteran elected to withdraw his claim of entitlement to service connection for otitis media. In August 2010, the AMC sent the Veteran a letter to clarify whether he was, in fact, withdrawing this claim. In an October 2010 statement, the Veteran reported that he was not withdrawing this appeal. Therefore, the Board finds that this issue remains before the Board on appeal. The issues of (1) entitlement to an evaluation in excess of 50 percent for service-connected PTSD and (2) entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record. See an October 2012 statement from the Veteran. However, since these issues have not been adjudicated in the first instance by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them. The Board is cognizant of the Court of Appeals for Veterans Claims' (the Court's) holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of an increased rating claim when such claim is raised by the record. However, as the claims presently before the Board are seeking service connection rather than increased evaluations, the Court's holding for Rice is not for application in the present case. In light of above, the Veteran's claims for an increased evaluation for service-connected PTSD and TDIU are REFERRED to the AOJ for appropriate action. The issue of entitlement to service connection for residuals of Barrett's esophagus, to include as due to in-service herbicide exposure, or, in the alternative, claimed secondary to service-connected migraine headaches, gastritis, residuals of an appendectomy with scarring, and/or PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT The Veteran does not have otitis media. CONCLUSION OF LAW Otitis media was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, 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. This notice must be provided prior to an initial unfavorable decision by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that the VCAA duty to notify was satisfied with regard to the claim decided herein with letters sent to the Veteran in August 2003 and November 2012. The letters addressed all of the notice elements regarding claims for direct service connection and secondary service connection and provided the Veteran with notice concerning the assignment of disability ratings and effective dates as per the Court's holding in Dingess. The Board notes that the Veteran was not afforded notice of the Court's holding in Dingess prior to the initial adjudication of his claim in June 2004. With respect to Dingess notice, the Board observes that providing such notice was a factually impossibility because the Court's decision in Dingess was not promulgated until after the RO's initial adjudication of the Veteran's claim. Indeed, the Board's March 2012 remand directives included that the Veteran was to be provided complete and appropriate notice of secondary service connection claims as well as the Court's holding in Dingess. This remand directive was substantially completed in the November 2012 letter to the Veteran from the AMC. After receipt of the November 2012 letter, the Veteran's claim was readjudicated by the AMC in a January 2013 Supplemental Statement of the Case (SSOC), thus curing and timing error regarding this notice. Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim); see also See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). To that extent, the Board's March 2012 remand directives have been substantially complied with. D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (substantial compliance as applied to remand instructions)); Stegall v. West, 11 Vet. App. 268 (1998). VA has also satisfied its duty to assist the Veteran at every stage of this case with regard to his claim for service connection denied herein. All available service treatment records as well as all identified medical records pertinent to the years after service are in the claims file and were reviewed by the RO, AMC, and the Board in connection with the Veteran's claim. Also, the Board's March 2012 remand directives included instructions to obtain and associate with the file updated VA treatment records and records from the Social Security Administration (SSA). In this respect, the AMC sought the Veteran's SSA treatment records and updated treatment records from several VA facilities in April 2012 and January 2013. These records have been associated with the Veteran's file and thoroughly reviewed by the AMC and the Board. In this respect, the Board's March 2012 remand directives have been substantially completed. Id. The Veteran was afforded VA examinations in connection with his claim to establish service connection for otitis media in June 2010 and July 2012. 38 C.F.R. § 3.159(c)(4). To that end, 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). While the Veteran presented for the June 2010 VA ear disease examination, the June 2010 VA examination report reflects that the Veteran told the examiner that he intended to withdraw his claim to establish service connection for otitis media, and thus, even though the examiner had reviewed the Veteran's claims file and noted the in-service ear infection, no diagnosis or opinion was rendered. Thereafter, in an October 2010 statement, the Veteran asserted that this was a miscommunication, and he did not desire to withdraw his claim. In light of above, in the March 2012 remand, the Board directed that the Veteran was to be afforded another VA ear examination in connection with this claim. A conforming examination was requested by the AMC in June 2012, and the Veteran presented for such in July 2012. The July 2012 VA ear examination report reflects that the examiner reviewed the Veteran's complete file, noted the Veteran's subjective complaints, interviewed the Veteran and completed a physical examination. Thereafter, the examiner offered medical opinions with adequate rationale concerning the Veteran's claim, citing specific evidence. The July 2012 examiner's statements are congruent with the balance of the evidence of record. The Board finds that the July 2012 VA examination is adequate for the purpose of adjudicating the Veteran's claim decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has also assisted the Veteran and his representative throughout the course of this appeal by providing them with a statement of the case which informed them of the laws and regulations relevant to his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Criteria & Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay 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) (footnote omitted). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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(a)(2). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Federal Circuit (Federal Circuit) recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a), even if such is noted to be "chronic." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Court has also held that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service treatment records reflect that he sought treatment for a left ear ache in October 1970. Upon examination, a small node of exudate was observed in the left external canal. The Veteran was prescribed antibiotics for three days. The remainder of the Veteran's service treatment records, to include his separation examination report, is devoid of any instance of complaints of or treatment for symptomatology congruent with otitis media of either ear. Concerning element (1) of direct service connection, evidence of a current disability, there is no current competent or credible evidence of a post-service diagnosis of otitis media or complaints of congruent symptomatology. To the contrary, the evidence is against such a finding. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, the July 2012 VA ear disease examination report reflects that, after a thorough review of the file as well as an interview with and physical examination of the Veteran, the examiner stated that the external, middle and inner portions of the Veteran's ear were within normal limits, and there was no ear pathology other than bilateral hearing loss and tinnitus, for which service connection was denied by the Board in March 2012. Further, the Veteran's voluminous medical records, to include those from VA and SSA, are devoid of any instance of complaints of or treatment for otitis media and/or congruent symptomatology. The Veteran is competent to report symptomatology which he experiences first-hand. See Jandreau, 492 F.3d at 1376-77. However, the record does not reflect that the Veteran has specifically asserted that he has had otitis media or congruent symptomatology during the pendency of the appeal. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson, 581 F.3d at 1316, citing Jandreau, 492 F.3d at 1376-77; see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, the Veteran has not asserted that he has otitis media or pointed to specific symptomatology indicative of such a diagnosis. In light of above, there is no evidence in favor of the Veteran's claim to weight against the statements of the July 2012 VA examiner. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence of record reflects that the Veteran has not been diagnosed with otitis media during the pendency of his appeal, service connection cannot be established under 38 C.F.R. § 3.303. Further, in light of above, discussion of the provisions of 38 C.F.R. §§ 3.303(b), 3.309(a) and the Federal Circuit's holding in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), pertaining to chronicity and continuity of symptomatology, is not necessary. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for otitis media is denied. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the Veteran's claim to establish service connection for residuals of Barrett's esophagus can be properly adjudicated. Unfortunately, the Board's March 2012 remand directives regarding this claim have not been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As noted by the Board in the March 2012 remand, the Veteran's claim was expanded to include the theory of secondary service connection, as he claimed that such was caused or aggravated by his service-connected disabilities, to specifically include PTSD. See 38 C.F.R. § 3.310. Accordingly, the Board remanded the claim at that time, directing that opinions should be sought concerning whether the Veteran's residuals of Barrett's esophagus were caused or aggravated by any of his service-connected disabilities. Such an opinion was requested by the AMC in November 2012, and at that time, the Board's March 2012 remand directives were conveyed, verbatim. The December 2012 VA opinion reflects that, after a review of the Veteran's file, the VA clinician stated that there was no relationship between the Veteran's Barrett's esophagus and his in-service ruptured appendix, but noted that the Veteran's service-connected gastritis, manifested by inflammation of the stomach due to overacidity, could also cause Barrett's esophagus if gastroesophageal reflux disease (GERD) becomes present. The clinician further clarified "I think there is a relationship between [the Veteran's] gastritis and GERD which is the cause of Barrett[']s esophagus." See the December 2012 VA opinion. The Board concludes that the December 2012 VA opinion is inadequate for the purposes of adjudicating the Veteran's claim. Initially, although the opinion resonates as if it is favorable to the Veteran's claim, since service connection for GERD has not been claimed by the Veteran or established by VA, the claim cannot succeed by virtue of this opinion. Also, even if service connection for GERD had been established, which it has not, the examiner's statement couched in terms of possibility rather than likelihood, and the Court has firmly held that such opinions cannot serve as a basis for service connection. Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical opinions which are speculative, general or inconclusive in nature cannot support a claim). Further, the VA clinician failed to address whether the Veteran's Barrett's esophagus was caused by his service-connected migraine headaches or PTSD, and the matter of aggravation of Barrett's esophagus by any of his service-connected disabilities, as per the Court's holding in Allen v. Brown, 7 Vet. App. 439, 448 (1995), was not addressed. Indeed, the Veteran has specifically asserted that his residuals of Barrett's esophagus is caused or aggravated by his service-connected PTSD. See statements from the Veteran dated in March 2004, May 2004, September 2008 and January 2011. As the December 2012 VA opinion is inadequate, the Board's March 2012 remand directives with respect to this issue have not been substantially completed, and thus, another remand is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC must obtain all updated, pertinent VA outpatient treatment records that have not been secured for inclusion in the record. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 2. Thereafter, the RO/AMC must ask the VA clinician who provided the December 2012 VA opinion to provide addendum opinions. If the VA clinician is unavailable or determines that it is necessary, schedule the Veteran for an appropriate VA examination to ascertain the etiology of his Barrett's esophagus. It is imperative that the complete record, to include the Veteran's claims file and Virtual VA file, be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the complete record, the examiner must address each of the following questions: (a) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus had its onset during his period of service or is otherwise related to his period of service, to include in-service herbicide exposure in the Republic of Vietnam? (b) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is proximately due to his service-connected PTSD? (c) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is proximately due to his service-connected migraine-type headaches? (d) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is proximately due to his service-connected gastritis? (e) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is proximately due to his service-connected residuals of appendectomy with scar? (f) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is aggravated (made permanently worse beyond the natural progression of the disease) by service-connected PTSD? If so, please identify the permanent and measurable increase in the severity of Barrett's esophagus that is attributed to service-connected PTSD? (g) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is aggravated (made permanently worse beyond the natural progression of the disease) by service-connected migraine-type headaches? If so, please identify the permanent and measurable increase in the severity of Barrett's esophagus that is attributed to service-connected migraine-type headaches? (h) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is aggravated (made permanently worse beyond the natural progression of the disease) by service-connected gastritis? If so, please identify the permanent and measurable increase in the severity of Barrett's esophagus that is attributed to service-connected gastritis? (i) Is it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's Barrett's esophagus is aggravated (made permanently worse beyond the natural progression of the disease) by service-connected residuals of appendectomy with scar? If so, please identify the permanent and measurable increase in the severity of Barrett's esophagus that is attributed to service-connected residuals of appendectomy with scar? All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinion with the service treatment records, post-service diagnoses, and lay statements of the Veteran. If opinions cannot be rendered without resorting to speculation as to the etiology of his Barrett's esophagus, the examiner should discuss in detail why opinions cannot be offered. 3. After completion of the above, the RO/AMC should review the expanded record and readjudicate the Veteran's claim. If the claim is not granted in full, issue to the Veteran and his representative a Supplemental Statement of the Case. Afford them the appropriate period of time within which to respond thereto. The Veteran and his representative have the right to submit additional evidence and argument on the 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). ______________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs