Citation Nr: 1319044 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-06 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a disability manifested by unexplained behavior, claimed as Gulf War syndrome. 2. Entitlement to service connection for left ankle disability, claimed as residuals of a left ankle fracture. 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for a sexually transmitted disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1992, to include service in Southwest Asia. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2008 and October 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled for a Board hearing at the RO in October 2012. He failed to report for the scheduled hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2012). Subsequent to the issuance of the Statement of the Case (SOC) pertaining to the asthma and left ankle issues (issued in October 2008), additional evidence consisting of records of VA treatment for asthma and left ankle complaints from October 2008 to December 2010 was associated with the claims file. Through his representative in a June 2013 statement, the Veteran waived his right to initial review of this evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). By rating decision in November 2010, the Appeals Management Center (AMC) in Washington, D.C., granted service connection for bipolar disorder. The United States Court of Appeals for the Federal Circuit has held that an award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, the matter of entitlement to service connection for bipolar disorder is not before the Board. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of entitlement to service connection for a disability manifested by unexplained behavior, claimed as Gulf War syndrome, and entitlement to service connection for left ankle disability are decided herein. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC. FINDINGS OF FACT 1. The Veteran was awarded service connection for bipolar disorder, evaluated as 100 percent disabling, effective March 19, 2001. 2. No disability manifested by unexplained behavior other than bipolar disorder has been shown during the period of this claim, and the award of service connection for a disability manifested by unexplained behavior would not provide an award of additional compensation. 3. No left ankle disability was present during the period of this claim. CONCLUSIONS OF LAW 1. Service connection for a disability manifested by unexplained behavior, claimed as Gulf War syndrome, is denied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.14 (2012). 2. A left ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in August 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in 2008. Nothing more was required. VA has also complied with its duty to assist the Veteran in the development of his claims. All available service treatment records (STRs), service personnel records and identified post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board also finds that no additional development for medical opinions or examinations is necessary. As is discussed further below, the Veteran has been awarded service connection for bipolar disorder, and has undergone VA examinations for this disability. Because no evidence of additional disability manifested by unexplained behavior has been presented, an additional medical opinion is not necessary. 38 C.F.R. § 3.159(c)(4). The Board has also considered whether an examination to determine nexus is necessary with respect to the claim for service connection for left ankle disability, and found that because the absence of any disability in service or post service, an opinion is not necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claims. II. Service Connection The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may 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). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Disability Manifested by Unexplained Behavior, Claimed as Gulf War Syndrome At the outset, it is important to note that the Veteran was awarded service connected for bipolar disorder, evaluated as 100 percent disabling, effective March 19, 2001. It is also important for the Veteran to understand that he is already service connected for his acquired psychiatric disability, whether it is called "bipolar disorder," "disability manifested by unexplained behavior," or "Gulf War syndrome," based on all psychiatric problems associated with service. There is no indication in the record that the RO is attempting to distinguish between the Veteran's service-connected bipolar disorder and any other psychiatric disability manifested during the period of the appeal. Rather, as indicated, the RO/AMC has considered all the Veteran's behavioral, emotional, and psychological symptoms in assigning him the 100 percent rating. No symptoms were excluded as being associated with a different psychological/behavioral disorder. The General Rating Formula for Mental Disorders evaluates Bipolar Disorder, 38 C.F.R. § 4.130, Diagnostic Code 9432, in pertinent part, as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, a 100 percent rating. 38 C.F.R. § 4.130. The Board points out that grossly inappropriate behavior is a symptom of bipolar disorder. In the case at hand, the Veteran submitted a claim seeking service connection for a disability manifested by unexplained behavior, claimed as Gulf War syndrome, in July 2007. He maintains that his behavior is "weird" and "unexplained" as a result of his military service. Upon review of the evidence, the Board notes that although post-service treatment records note that the Veteran has exhibited inappropriate behavior (see, e.g., VA hospitalization records dated from March 2007 to April 2007), these symptoms were attributed to bipolar disorder. No findings of any other disability manifested by unexplained behavior, to include Gulf War syndrome, have been noted. With respect to whether the Veteran's own statements can establish a current disability (other than bipolar disorder) manifested by unexplained behavior, to include Gulf War syndrome, in See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The criteria under Jandreau have not been met in the present case. That is, although the Board readily acknowledges that Veteran is competent to report behavioral problems or strange behavior, there is no indication that the Veteran is competent to differentiate his symptoms and make a determination that certain behaviors/action are not related to his bipolar disorder. The Veteran is simply not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating psychiatric disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. The Board emphasizes that a psychiatric disability is not the kind of simple determination that is easily observable by a lay person, such as a fall leading to a broken leg. The question is medical in nature. That evidence, the medical evidence, strongly establishes that the Veteran's behavior problems are due to his bipolar disorder. A separate and distinct disability manifested by behavior problems has not been diagnosed. Thus, current disability has not been established either through the clinical record or the Veteran's own statements. The claim must fail. The Board also notes that in Amberman v. Shinseki, the Federal Circuit recognized that separately diagnosed psychiatric conditions could be service connected, but could not be separately rated unless they resulted in different manifestations. 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). In this regard, the Veteran has been awarded service connection for bipolar disorder under 38 C.F.R. § 4.130, which includes the symptom of grossly inappropriate behavior. Whatever the psychiatric disability is called by the RO, there is no basis to award the Veteran additional compensation by "granting" service connection for a disability that is already being compensated under 38 C.F.R. § 4.130. The evaluation of the Veteran's grossly inappropriate behavior had been appropriately considered in the assignment of a 100 percent rating for bipolar disorder. A separate, compensable evaluation of the same disability under various diagnoses, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Left Ankle Disability The Veteran maintains that he broke his left ankle in service. He also maintains that he has current pain and swelling in his left ankle that is related to his military service. The Veteran's STRs are silent for findings related to left ankle disability, to include a left ankle fracture. A September 1992 report of medical history at separation notes no history of ankle problems. The Veteran denied a history of broken bones, swollen or painful joints, and bone or joint deformity. The September 1992 service separation examination report shows clinical evaluation of the lower extremities was normal. More importantly, there is no post-service medical evidence of any left ankle disability. Although the Veteran has complained of pain and swelling, see November 2010 VA outpatient treatment record, no underlying left ankle disability has been diagnosed. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Of note, a September 2009 VA Aid and Attendance examination report notes that the Veteran was morbidly obese, with a normal gait and erect posture. There were no restrictions of limitation of motion. On examination, there was no muscle atrophy, weakness, incoordination, or deficits on weight bearing, balance, or propulsion. These findings were again noted on QTC examination in November 2010. The Veteran was noted to have no function restrictions to his lower extremities. The criteria under Jandreau have not been met. There is no medical diagnosis of record to rely on, either contemporaneously or at a later time. Indeed, while he is competent to report experiencing left ankle pain, he lacks the necessary the requisite medical training, expertise, or credentials needed to render a diagnosis. Moreover, despite his past history of experiencing left ankle pain, physical examinations have disclosed no disability of the ankle to account for his complaints of pain. Pain alone is not a disability. See Sanchez-Benitez, supra. A current disability has not been established either through the clinical record or the Veteran's own statements. As such, the claim must fail. In sum, the record does not show the Veteran has had diagnosed left ankle disability at any time during the period under review. McClain, 21 Vet. App. 319, 321. As the Veteran has not shown a current disability for which service connection can be granted, the claims must be denied. Conclusion In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a disability manifested by unexplained behavior, claimed as Gulf War syndrome, is denied. Service connection for left ankle disability is denied. REMAND Asthma The Veteran claims that he has asthma related to gas mask training, exposure to gun cleaning solvents and exposure to smoke from oil well fires in Southwest Asia during his military service. The Veteran's DD Form 214 shows that he had service in Southwest Asia during the Gulf War. He received a Rifle Expert Badge. His STRs do not reveal the presence of asthma or any complaints of breathing difficulties. Post-service treatment records note the Veteran's treatment for asthma. In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's claimed asthma and his service, to include his duties therein, is warranted. Prior to the examination, all outstanding, pertinent medical records should be obtained. Sexually Transmitted Disease One of the matters the Board must address is which issue or issues are properly before the Board. An appeal to the Board is initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal after an SOC (Statement of the Case) is furnished. In essence, the following sequence is required: There must be a decision by the RO; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203. An October 2008 rating decision denied entitlement to service connection for a sexually transmitted disease. In December 2008, the Veteran submitted a timely NOD as to the denial. See VA Form 9 received December 2008. However, the record before the Board does not show that the Veteran has been provided an SOC in response to the NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should issue an SOC to the Veteran and his representative addressing the issue of entitlement to service connection for sexually transmitted disease. It should also inform them of the requirements to perfect an appeal with respect to the new issue. 2. The RO or the AMC should contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who might have records, not already associated with the claims file, pertaining to post-service treatment or evaluation of any of the disabilities at issue. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the RO or the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Thereafter, the RO or the AMC should arrange for the Veteran to be examined by a physician with sufficient expertise to determine the etiology of any respiratory disorder diagnosed during the period of the appeal (since April 2007). The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims file must be reviewed by the examiner in conjunction with the examination. Based upon the claims file review and sound medical principles, the examiner should answer the following question: Is it at least as likely as not that the Veteran's asthma is etiologically related to his active military service, to include his service in Southwest Asia. The examiner must acknowledge and discuss the Veteran's lay statements. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After undertaking any further development deemed warranted (to include obtaining any treatment records or medical opinions), the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for asthma in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs