Citation Nr: 1314717 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-22 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus type II, claimed as due to exposure to herbicides. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected diabetes mellitus type II, claimed as due to exposure to herbicides. 3. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD) and schizophrenia, to include as due to exposure to herbicides. 4. Entitlement to service connection for temporomandibular joint (TMJ) disorder, to include as secondary to an acquired psychiatric disability. 5. Entitlement to service connection for right ear hearing loss. (The issue of entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus type II is addressed in a separate decision) REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, and from a February 2010 rating decision of the RO in Huntington, West Virginia. The Board has subsumed the issue of entitlement to service connection for schizophrenia into the claim of entitlement to service connection for an acquired psychiatric disability that was broadened pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). As such, the Veteran is considered to have perfected his appeal of the denial of service connection for schizophrenia and no further action need be taken by the Veteran to perfect an appeal of the schizophrenia claim. In March 2011, the Board remanded the claim for further development. The remand included the issue of service connection for diabetes mellitus. During the course of the further development of the claim, the Veteran elected to have a hearing on the issue of service connection for diabetes mellitus. A hearing as to that issue was held in November 2012. The hearing was conducted in front of a different Veterans Law Judge (VLJ) than the undersigned. Accordingly, the issue is the subject of a separate decision to be decided by the VLJ who conducted the November 2012 hearing. The issues of entitlement to service connection for peripheral neuropathy of the upper extremities, peripheral neuropathy of the lower extremities and hearing loss of the right ear 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. FINDINGS OF FACT 1. It has not been shown by competent and probative evidence that the Veteran has a current diagnosis of PTSD. 2. The preponderance of the evidence is against finding that the Veteran has schizophrenia that is etiologically related to a disease, injury, or event in service. 3. The Veteran's TMJ is not related to a disease or injury in service and the preponderance of the evidence is against an etiological relationship with a service connected disability. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is not established. 38 U.S.C.A. §§ 105, 1110, 1110, 1112, 1137, 1153, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.384 (2012). 2. The Veteran's TMJ was not incurred in active service, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in September 2008 and December 2009. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the nature, etiology, and severity of his disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that 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). The Board finds that the VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may also be allowed on a presumptive basis for psychosis and if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to General Medical Condition; (d) Psychotic Disorder Not Otherwise Specified; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; (h) Shared Psychotic Disorder; and (i) Substance-Induced Psychotic Disorder. 38 C.F.R. § 3.384 . To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss experiencing paranoia and hearing voices that are not there. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). 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); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) ; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Psychiatric disorder The Veteran seeks service connection for a psychiatric disorder, to include PTSD and schizophrenia. After a careful review of the evidence of record the Board finds that the preponderance of the competent evidence is against a finding of service connection. He attributes any current psychiatric disability to his experiences while serving in Vietnam. Specifically, the Veteran's December 2009 stressor statement states that the Veteran was working on a bridge in Dog Pho when the Vietcong bombed them from above and destroyed the bridge. He stated that they started rebuilding the bridge and it was bombed again. He reported that this incident occurred in December 1966 or January 1967 when he was stationed with Company B, 31st Engineer Battalion. He also reported that, in January 1967, he and his company were taking a swim break in the river when Vietcong started shooting at them. In both of these incidents, people were killed in action. With regards to the issue of service connection for PTSD, a review of the Veteran's service treatment records does not show any complaints of, symptoms of, or a diagnosis of PTSD. VA outpatient treatment records only show a diagnosis of schizophrenia. Moreover, at the February 2012 VA examination, although the examiner acknowledged that the Veteran's experienced trauma while serving in Vietnam, the Veteran was diagnosed with schizophrenia. A diagnosis of PTSD was not rendered at the time. Although the Veteran may sincerely believe that he has PTSD, the Board finds that the consistent medical evidence of record is far more probative on the matter of which psychiatric disorder he is diagnosed with. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, as the most probative evidence of record shows that the Veteran does not have PTSD, the Board concludes that the claim must be denied. Gilbert, supra. Regarding the diagnosed schizophrenia, service treatment records are completely silent for any complaints of or diagnosis of a psychiatric disability. Private post service treatment records show the Veteran was hospitalized ` for psychosis in October 1993. At the time, he reported hearing voices which had started two years before. Records of November 1993 show the Veteran was seen for a recent psychotic episode. At the time, he also reported a history of panic attacks. After an examination of the Veteran, he was diagnosed with schizophreniform disorder and panic disorder with agoraphobia in remission. VA outpatient treatment records of July 2010 note that the Veteran was diagnosed with schizophrenia in 1993. Additional private and VA outpatient treatment records note continued treatment for schizophrenia. The Veteran was afforded a VA psychiatric examination in December 2012. At the time, the Veteran reported that he did not experience psychiatric symptoms until many years after service. After a review of the claim file and an examination of the Veteran, the examiner rendered a diagnosis of schizophrenia. He noted there was no other psychiatric disability. The examiner acknowledged that the Veteran was exposed to trauma in service, but nevertheless, determined the Veteran did not meet the criteria for PTSD. He stated that based on the review of the record and interview of the Veteran, there is no evidence of any symptoms related to his Vietnam experience and fear of hostile military or terrorist activity. The examiner further noted that the Veteran has suffered with chronic paranoid schizophrenia for many years, but with clear report of onset long after military service. He finally noted that no symptoms have any relevance to military experience. He opined that it is more likely than not the Veteran's condition is not related to military service. The evidence as delineated above, clearly shows that the Veteran has a diagnosis of schizophrenia. Thus, the crucial inquiry is whether the Veteran's current schizophrenia is related to any incident in service. For the reasons and bases set forth below, the Board concludes they are not. Considering the above evidence, the Board finds there is no competent evidence of record demonstrating in-service schizophrenia symptoms. The Board notes that the Veteran's D-214 shows he was a combat engineer and that he served in Vietnam. As such, the claimed stressors of combat are conceded. However, there is no competent evidence that the current schizophrenia is related to any incident in service. Indeed, as noted, the VA examiner opined that there is no relationship between the Veteran's Vietnam experiences and his schizophrenia. He noted the absence of symptoms in service and the many years between release from active service and the diagnosis of schizophrenia. Indeed, the record shows that the first symptoms of psychosis were not until over two decades after separation from service. As noted, psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. As noted above, the Veteran was not diagnosed with schizophrenia until over two (2) decades after service. Significantly, the Veteran himself stated at the VA examination that he had not experienced psychotic symptoms until many years after separation from service. The Board acknowledges that the Veteran has submitted lay evidence in the form of multiple letters from his sister in law, friends and siblings. The letters consistently state that the Veteran had no mental problems prior to service and has had mental problems after service. While the letters may be implying that the Veteran developed psychiatric symptoms due to his experiences in Vietnam and has experienced psychiatric symptoms since service, the most credible evidence as a whole does not support continuity of symptomatology. Indeed, as noted, the Veteran himself has stated that he did not experience any psychiatric symptoms until many years after service. The October 1991 hospitalization records do not note any reports of service incidents leading to the symptoms. The November 1993 private treatment records which initially diagnosed him with schizophreniform disorder, does not mention any service related events or causes to the symptoms. Therefore, considering the evidence as a whole, the Board finds that the greater weight of probative evidence is against finding that a psychosis manifested to a compensable degree within a year of separation. As there is no competent evidence of in-service psychiatric problems, no credible evidence of a continuity of symptomatology since service, no indication that the Veteran is competent to render a medical opinion otherwise linking his current disability to service, and there is no other medical evidence linking any current schizophrenia to any incident of military service, the Board concludes that the preponderance of the evidence is against granting service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); see generally Hickson, supra. B. TMJ The Veteran seeks service connection for TMJ. He has argued that his TMJ is due to his psychiatric disability. In addition to the requirements for establishing service connection on a direct basis, service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) ; Allen v. Brown, 8 Vet. App. 374 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. Service treatment records are completely silent for any diagnosis of or treatment for TMJ. Post service treatment records are equally silent for any treatment of or diagnosis of TMJ. The Veteran has not introduced any competent evidence of a diagnosis of TMJ. Without evidence of a current disability, service connection for TMJ cannot be granted. See Brammer, supra. The Board acknowledges that the Veteran testified at the November 2010 hearing, that he grinds his teeth and has been diagnosed with TMJ. The Veteran is competent to testify as to his symptoms. However, even if the Board were to accept his testimony as evidence of TMJ, service connection is still not warranted. The Board notes that the evidence does not show and the Veteran does not allege that TMJ is due to service. Rather, he has alleged that TMJ is due to his psychiatric disability. However, as decided above, service connection is not in effect for any psychiatric disability. To establish service connection on a secondary basis, there must be a service connected disability which caused or aggravated the claimed disability. There being no service connected psychiatric disability, service connection for TMJ on a secondary basis is not warranted. Accordingly, the claim for service connection for TMJ must be denied. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is denied. Service connection for TMJ is denied. REMAND The Veteran seeks service connection for peripheral neuropathy of the upper and lower extremities, and for right ear hearing loss. After a review of the evidence of record, the Board finds that additional development is needed prior to deciding the claims. In regards to the peripheral neuropathies, the RO, in the most recent supplemental statement of the case (SSOC) of July 2012, references an electromyogram (EMG) of January 2012 which showed polyneuropathy of the lower extremities. A careful review of the claim file shows that the EMG report has not been associated with the claim file. On remand, the report of the EMG study must be associated with the claim file. Furthermore, the Veteran was afforded a VA examination in November 2011 for peripheral neuropathy. At the time, he was found not to have peripheral neuropathy in any of his extremities. The RO scheduled him for a VA examination in April 2012 to reconcile the findings of the January 2012 EMG and the November 2011 examination. The Veteran failed to appear but showed good cause for not doing so; he submitted a statement stating his car had broke down on his way to the examination. He requested that another examination be scheduled. It appears that the Veteran was scheduled for another VA examination in May 2012. While the RO in the July 2012 SSOC stated that the Veteran failed to appear for the examination, the only document from the VA Medical Center shows that the request for the examination is still open. There is nothing in the record to indicate the Veteran failed to appear. Furthermore, there is nothing in the record to show that the Veteran was informed of the rescheduled examination. Indeed, there is no letter or documented phone call which shows the Veteran was informed of the scheduled examination. As the Board cannot be certain that the Veteran knew of the scheduled examination in May 2012, the Board will afford the Veteran one more opportunity to show up for an examination. On remand, the Veteran should be scheduled for a new VA examination to determine whether he currently has peripheral neuropathy. In regards to the issue of hearing loss of the right ear, the Veteran was afforded a VA examination in December 2011. At the time, he was diagnosed with hearing loss and the examiner opined that the hearing los was not due to service. He noted that the separation examination showed normal hearing and the Veteran had not had difficulty with his hearing until about 4-5 years ago. However, the record reflects that the Veteran was a combat engineer and as such was exposed to noise in service. Moreover, at the November 2010 hearing, he testified that he had hearing problems in service and ever since. The Veteran is competent to so state. While the December 2011 examiner noted that the claim file revealed a normal separation physical, the examination report did not note what records the examiner reviewed prior to rendering an opinion. Moreover, the examiner made no mention of the Veteran's exposure to noise in service or his claims of continuity of symptomatology since service. As it is unclear that the examiner considered the entire claim file, the Veteran's statements of continuity of inception in service, continuity of symptoms or the Veteran's exposure to noise in service, the Board finds that the opinion is inadequate for appellate review and a new opinion is needed prior to deciding the claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a copy of the EMG test of January 2012 and associate the same with the claim file. 2. After the above development has been completed, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current peripheral neuropathy of the upper and lower extremities. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should diagnose any pertinent pathology. The examiner should specifically consider the results of the EMG 2012 test. If a new EMG test is found by the examiner to be needed, the same should be conducted in conjunction with the examination. As to any disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability was incurred or aggravated as a result of the Veteran's military service, to include as secondary to his service-connected diabetes mellitus type II or as secondary to his in-service Agent Orange exposure. Any opinion expressed must be accompanied by a complete rationale. 3. The claim file should be returned to the examiner who conducted the December 2011 VA audiological examination and ask that a new opinion be provided. The claim file should be thoroughly reviewed and the examiner must note that a review of the claim file was conducted. The VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that the right ear hearing loss was incurred or aggravated as a result of the Veteran's military service, to include as a result of in-service acoustic trauma. The examiner must consider the conceded noise exposure in service. Moreover, the examiner must consider the Veteran's reports of hearing problems in service and since then. Any opinion expressed must be accompanied by a complete rationale. 4. Then, readjudicate the claim. In the event that a claim is not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs