Citation Nr: 1318223 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-39 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of cervical cancer. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1995 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. With regard to the Veteran's claim for service connection for residuals of cervical cancer, as will be discussed in further detail below, this decision denies the Veteran's claim because she has never been diagnosed with cervical cancer. To the extent the Veteran wishes to seek service connection for any of her diagnosed genitourinary conditions, she must specifically make such a claim for such condition. With regard to the Veteran's claim for service connection for a psychiatric condition, the Board observes that the Veteran's October 2007 claim sought service connection for a personality disorder. This issue was specifically withdrawn from appellate review at the March 2013 Board videoconference hearing. In February 2012, the Veteran submitted a claim seeking service connection for PTSD. Although, as in the instant case, a veteran's stated claim may only seek service connection for a specific psychiatric condition, the United States Court of Appeals for Veterans Claims (Court) has held that such a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, but she instead makes a general claim for compensation for the difficulties posed by her mental condition. Pursuant to the Court's decision in Clemons, the issue for consideration on remand should not be strictly limited to any one psychiatric condition such as PTSD, but it should instead encompass any other acquired psychiatric diagnoses shown. The issue on appeal has been recharacterized accordingly. The issue of service connection for an acquired psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on her part is required. FINDING OF FACT The Veteran is not currently shown to have residuals of cervical cancer. CONCLUSION OF LAW Residuals of cervical cancer were not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but it does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); 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 on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated December 2007 provided all appropriate notification. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, the Board finds that all necessary assistance has been provided to the Veteran. Private medical records and service treatment records have been obtained and reviewed in connection with this appeal. The Board acknowledges that during her March 2013 hearing before the undersigned, the Veteran stated that she received Social Security Administration (SSA) disability benefits beginning in 2000. The Veteran indicated that she receives such benefits for disabilities that she suffered as a result of a motor vehicle accident; such disabilities are entirely unrelated to her claim for service connection for cervical cancer. When VA receives notice that the veteran receives SSA disability benefits, VA must acquire a copy of the decision granting such benefits and the supporting medical documents only when there is a reasonable possibility that the records could help the veteran substantiate the claim for benefits. See Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Given the Veteran was granted SSA disability benefits for accident-related disabilities that do not involve her claimed cervical cancer, the Board finds that there is no reasonable possibility that these SSA records would help substantiate the Veteran's claim. Accordingly, the Veteran is not prejudiced by the Board rendering a decision at this time, without the SSA records. The Veteran has not been afforded a VA examination of her claimed cervical disorder because such an examination is unnecessary. The Veteran has contended broadly that she experiences residuals of cervical cancer. As the Board will discuss in further detail below, the medical record does not support a finding that the Veteran has been diagnosed with cervical cancer. Accordingly, without evidence of a current disability, the Board finds that a VA examination is not required. See 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In March 2013, the Veteran participated in a videoconference hearing before the undersigned, and a transcript of this hearing has been associated with the record. In sum, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file, and it is not contended otherwise. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Specifically with respect to the first Hickson element, there must be competent evidence of a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (current disability means a disability shown by competent medical evidence to exist at the time of the award of service connection); McClain v. Nicholson, 21 Vet. App. 319 (2007) (current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in absence of proof of a present disability, there can be no valid claim for service connection because Congress has specifically limited entitlement in this manner). Furthermore, pain alone, without a diagnosed or identifiable underlying malady or condition, does not itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Turning to the facts in the instant case, the Veteran has claimed service connection for residuals of cervical cancer. The Board has reviewed the Veteran's claims file for any diagnosis or treatment for cervical cancer, and it has found none. A May 1995 service treatment record indicates that the Veteran had a low-grade squamous intraepithelial lesion on the cervix (an abnormal growth on the surface of the cervix). Subsequent pathological testing in June 1995 revealed benign endocervical and endometrial tissue with no diagnostic changes on the endocervix. Biopsies from the cervix revealed severe acute and chronic cervicitis (inflammation of the cervix) with immature squamous metaplasia (benign, non-cancerous changes), reactive epithelial changes, and condyloma (infection). Later in June 1995, a cryosurgery was performed to treat abnormal areas of the cervix identified by pap smear or biopsy; no complications following this procedure were noted. The Veteran's November 1995 exit examination indicated that the Veteran's genitourinary system was normal. The Veteran's medical treatment records are silent for any complaints relating to her genitourinary system until October 2011, when she was diagnosed with a symptomatic fibroid uterus, menorrhagia (an abnormally heavy and prolonged menstrual period), and dysmenorrhea (a painful menstrual period). A November 2011 private treatment record indicated that the Veteran had a past history of a bilateral tubal ligation, marsupialization of a Bartholin's cyst, and the above-described cervical cryotherapy. No past history of cervical cancer was noted. In November 2011, the Veteran underwent a vaginal hysterectomy (removal of the uterus) with left salpingo-oophorectomy (the removal of the left ovary with the fallopian tube) as a result of the October 2011 complaints. None of these treatment records mention a past history of cervical cancer or a current diagnosis with cervical cancer. The Board acknowledges the Veteran's belief that she has a disability, and she is competent to testify as to symptomatology such as experiencing pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notwithstanding the Veteran's belief, the objective evidence fails to show that the Veteran has ever been diagnosed with cervical cancer, and thus by definition she cannot suffer from residuals of cervical cancer. The Veteran, as a lay person, is not competent to opine that any symptomatology is attributable to a particular underlying disability. The Veteran's statements alone are therefore insufficient to establish the presence of any current disability, and her opinions regarding the presence of a disability are outweighed by the weight of the objective evidence that does not demonstrate the presence of a disability at any time during the course of the appeal. Thus, upon review of the above records, the Board finds that without a diagnosis of cervical cancer at any time, it is an impossibility for the Veteran to suffer from residuals of cervical cancer. Without medical evidence of a current disability, the Veteran does not meet the first requirement set forth in Hickson, and the claim fails on this basis. See Hickson, supra. Thus, service connection for residuals of cervical cancer cannot be granted. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). As the Veteran has failed to satisfy the first element of Hickson, the Board finds the remaining questions of in-service disease or injury or other service-connected disability and medical nexus to be irrelevant. Accordingly, the Board finds that the claim of entitlement to service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for residuals of cervical cancer is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that additional development of the record is warranted with respect to the Veteran's claim for service connection for an acquired psychiatric disorder. In her March 2013 hearing testimony before the undersigned, the Veteran stated that she received SSA disability benefits beginning in 2000. While the Veteran indicated that she receives such benefits for disabilities that are unrelated to the claims in the instant case, the Veteran also stated that she first received psychiatric care at the time she applied for SSA benefits. The Board notes that when VA receives notice that the Veteran receives SSA disability benefits, VA must acquire a copy of the decision granting such benefits and the supporting medical documents when there is a reasonable possibility that the records could help the Veteran substantiate the claim for benefits. See Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992); see also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Although VA is not obligated to follow a determination made by SSA, these records could conceivably be relevant to the matter on appeal. Therefore, given the suggestion that the Veteran may have undergone psychiatric testing at the time of her application for SSA benefits, attempts should be made to obtain the Veteran's SSA records. See 38 C.F.R. § 3.159(c)(2) (2012). The Veteran stated during her March 2013 hearing before the undersigned that she has received treatment for a psychiatric condition at I.R., a private psychiatric facility. In February 2012, the Veteran provided records from I.R. dating only from January 2012. On remand, all pertinent psychiatric records from I.R. should be solicited. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the instant case, the record contains evidence suggesting that the Veteran currently receives treatment for an acquired psychiatric condition. Furthermore, the Veteran received in-service treatment for psychiatric issues, and she was diagnosed in-service with a personality disorder NOS with schizotypal and borderline personality traits. The record also contains the Veteran's contentions that her psychiatric symptoms have persisted since the time of her active duty service. Accordingly, with evidence of a current disability, an in-service event, and the Veteran's contentions regarding a connection between the two, this case must be remanded for a VA medical examination to determine the nature of the Veteran's acquired psychiatric condition and whether such disability is related to service. With regard to the Veteran's in-service diagnosis with a personality disorder, the Board notes that generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). The Veteran does not seek service connection for a personality disorder here. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); see also VAOPGCPREC 82-90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Accordingly, the case is REMANDED for the following actions: 1. Take all appropriate efforts to obtain and associate with the claims folder medical records from any provider identified by the Veteran from whom she received treatment for her acquired psychiatric condition. Specifically, after obtaining the appropriate authorization from the Veteran, request that I.R. provide all available psychiatric treatment records for the Veteran. All attempts to obtain records should be noted in the claims folder, and the Veteran should be notified of any unsuccessful efforts. 2. Associate either with the paper claims file or the Veteran's Virtual VA e-folder all outstanding VA medical records relating to the Veteran's treatment for an acquired psychiatric disorder. 3. Obtain from the SSA all records associated with the Veteran's claim for SSA disability benefits, including the medical records relied upon concerning that claim. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. If they cannot be located or no such records exist, the Veteran should be notified in writing. All actions to obtain the requested records should be documented fully in the claims files. 4. The RO/AMC should compile a list of the stressor events reported by the Veteran that she believes resulted in her PTSD and indicate whether they have been established. All appropriate action should be taken to verify the reported stressors. 5. Notify the Veteran that it is her responsibility to report for any VA examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 6. After completing the above directives, schedule the Veteran for an appropriate examination to ascertain the etiology of any current acquired psychiatric disability. Following a review of this remand directive, a complete review of the Veteran's claims file, and an examination of the Veteran, the examiner should: a. Identify any psychiatric disorder, to include PTSD or a personality disorder, that is currently manifested or which is indicated in the record. b. If PTSD is diagnosed, the examiner should address whether the diagnosis of PTSD is consistent with the criteria for a diagnosis under the DSM-IV. If the diagnostic criteria to support a diagnosis of PTSD have been satisfied and a diagnosis of PTSD is deemed appropriate, the examiner should comment upon any link between the current symptomatology and the Veteran's claimed stressors. If the examiner finds that the Veteran's condition does not satisfy a particular PTSD axis, such finding must be accompanied with a full discussion of the relevant evidence of record. Specifically, the examiner's opinion must address why the medical evidence of record indicating that the Veteran has PTSD is insufficient to support a diagnosis of PTSD. If the examiner determines that the Veteran has a current PTSD disability, then the examiner should determine whether it is at least as likely as not (that is, a probability of 50 percent or greater) that the Veteran's PTSD is etiologically related to the Veteran's active military service. c. If any other psychiatric condition is diagnosed, the examiner should provide an opinion whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any such disorder is etiologically related to the Veteran's active military service. d. For any diagnosed personality disorder, opine whether there was a superimposed disease or injury in service resulting in a current acquired psychiatric disability. The VA examiner must provide a thorough rationale for any opinion provided, as a matter of medical probability, based on the examiner's clinical experience, medical expertise, established medical principles, and the evidence of record. References should be made to pertinent documents of record, as necessary. 7. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination report to ensure that it is responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After undertaking any additional development deemed to be necessary, readjudicate the Veteran's claim. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran an appropriate opportunity to respond. The case should be returned to the Board, as warranted. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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 or by the Court 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs