Citation Nr: 1319540 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-42 380 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include a depressive disorder with panic attacks and anxiety. 2. Entitlement to service connection for residuals of a left thumb and hand injury. 3. Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Massachusetts Army National Guard from March 1977 to March 1983, including a period of ACDUTRA from May 1977 to August 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision that denied service connection for a depressive disorder with panic attacks and anxiety, for residuals of a left thumb and hand injury, and for residuals of a low back injury. The appellant timely appealed. The Board notes that the U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, because the appellant claimed service connection for a depressive disorder and for panic attacks; and had been diagnosed with a depressive disorder, an anxiety disorder, and an inability to tolerate pain secondary to psychological and physical factors, the issue on the title page reflects the expanded issue on appeal as a result of the Clemons decision. Because service connection for post-traumatic stress disorder (PTSD) recently was denied by the RO in a March 2011 rating decision, and the appellant did not initiate an appeal, that matter is not before the Board. In addition to reviewing the appellant's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of service connection for residuals of a low back injury is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. A depressive disorder with panic attacks and anxiety did not have its onset, nor did it increase in severity, during a period of ACDUTRA, and was not due to injury incurred during a period of INACDUTRA. 2. Residuals of a left thumb and hand injury were not exhibited during a period of ACDUTRA or INACDUTRA, and are not otherwise related to National Guard service. CONCLUSIONS OF LAW 1. A depressive disorder with panic attacks and anxiety was not incurred or aggravated during a period of ACDUTRA, or due to injury during a period of INACDUTRA. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.306 (2012). 2. Residuals of a left thumb and hand injury were not incurred or aggravated in National Guard service. U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the appellant of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through a March 2008 letter, the RO notified the appellant of elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claims. VA's letter notified the appellant of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2008 letter, the RO specifically notified the appellant of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the appellant's claims decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant has not been afforded examination for his claimed depressive disorder with panic attacks and anxiety, or for his residuals of a left thumb and hand injury. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claims. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As will be discussed below, there is no competent medical evidence of a "covered disease" for INACDUTRA service, and no competent medical evidence suggesting a relationship between his current residuals and National Guard service. Based on the facts of this case, VA has no duty to provide further VA examination or obtain medical opinions, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The appellant has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. In this regard, the appellant is unable to recall the name and/or location of a hospital in Massachusetts in which he was treated for pneumonia during National Guard service in 1978; and the RO's attempts to obtain such records, to date, have been futile. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the appellant in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis The appellant contends that a depressive disorder with panic attacks and anxiety, and residuals of a left thumb and hand injury had their onset in National Guard service. As a preliminary matter, the record confirms that the appellant had a period of active duty for training (ACDUTRA) from May 1977 to August 1977, as well as other periods of ACDUTRA and inactive duty for training (INACDUTRA). There is no period of active duty not associated with the National Guard; nor does it show that service connection has been granted for any disability. Therefore, until service connection is granted for a disability, the appellant is not considered a Veteran for VA compensation purposes, and is not entitled to the presumptions accompanying Veteran status. See 38 C.F.R. §§ 3.1(d) and 3.6(a) (2012). These include the presumptions of soundness, aggravation, and chronic diseases. See 38 U.S.C.A. §§ 1111, 1112; see also Smith v. Shinseki, 24 Vet. App. 40 (2010) (holding that a claimant who served in the National Guard was not entitled to the presumptions of sound condition and aggravation for ACDUTRA). Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. It 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With specific regard to National Guard and Reserve service, service connection may be granted for disability resulting from either disease or injury incurred in, or aggravated while performing, ACDUTRA. With respect to time periods of inactive duty training, service connection may only be granted for injury so incurred or aggravated, or for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. § 3.6 (2012). A. Depression Disorder with Panic Attacks Clinical evaluation at the time of the appellant's separation examination in July 1977 from ACDUTRA revealed a normal psychiatric system. In February 2007, the appellant complained of continuing depression associated with panic attacks and sleepless nights. He reported that his National Guard unit had been deployed during the Blizzard of 1978, and he was sent to Scituate, Massachusetts. The appellant still has nightmares of dead bodies that had frozen to death in houses and in cars, and of houses lifted off of their foundations and demolished. The appellant's "Retirement Credits Record" for National Guard service shows that the only dates of ACDUTRA in 1978 were during two summer months from June 24, 1978 to July 8, 1978. Hence, the remainder of appellant's National Guard service in 1978, including his unit's deployment to Scituate, Massachusetts, during the 1978 winter blizzard, is shown as INACDUTRA. National Guard treatment records, dated from July 1977 to July 1981, do not reflect any findings or complaints of depression, panic attacks, or anxiety. The appellant separated from the National Guard in March 1983. Post-National Guard records first show treatment for depression and mood swings in August 2003. At that time, the appellant reported that he felt a recent surgery was the cause of his depression; and that he had animosity for his former employer and insurance company. The appellant reported having low back surgery initially in 1999, and undergoing a laminectomy in April 2003. The Axis I diagnoses in August 2003 were mood disorder due to general medical condition, alcohol abuse, and rule out alcohol dependence. The appellant was again treated for depression and anxiety in May 2004. Subsequent psychological evaluations included Axis I diagnoses of dysthymic disorder in January 2006, and major depression severe with psychotic features in September 2008. During a March 2010 VA psychiatric consultation, the appellant reported having nightmares, especially in the last three-to-four years, related to his National Guard service. He reported that he had to bag and tag dead bodies, and that these memories came into his mind on a daily basis. He reported having problems since nearly 1978, but that his problems have progressed over the years. The appellant reportedly went into a deep depression, and did not get much sleep overall. The appellant reportedly isolated himself from other people, and felt paranoid. He also reported many financial stressors, and a history of polysubstance abuse. Following mental status examination, the Axis I diagnoses were PTSD; depressive disorder, not otherwise specified; anxiety disorder, not otherwise specified; and inability to tolerate pain, secondary to psychological and physical factors. Although the appellant was a member of the National Guard at the time of the unit's deployment to Scituate, Massachusetts, in the 1978 blizzard, his records reflect that this was during an INACDUTRA period. There was no injury during this period of INACDUTRA, nor cardiac or cerebrovascular event during this period. Therefore, by law, service connection cannot be established for the appellant's diagnosed psychiatric disease based on this period of INACDUTRA. The evidence, including the appellant's credible statements regarding his INACDUTRA, does not support a finding that a depressive disorder with panic attacks and anxiety had its onset during a period of ACDUTRA. Because the weight of the evidence is against a finding that the appellant's psychiatric disease had its onset during ACDUTRA, and there is no evidence of aggravation during ACDUTRA, service connection is denied. B. Residuals of a Left Thumb and Hand Injury National Guard treatment records do not reflect any findings or complaints of a left thumb and hand injury. Nor was there any treatment for residuals of a left thumb and hand injury in ACDUTRA or INACDUTRA. Post-National Guard records show that the appellant had undergone surgical repair of the dorsal capsule of the left metacarpal phalangeal joint and thumb in September 1984, due to a printing press injury at work in August 1984. His plan of care included a home exercise program. Here, the appellant is competent to offer statements of first-hand knowledge that he experienced left thumb and hand pain post-National Guard service. The first evidence of pertinent disability and/or injury of the appellant's left thumb and hand is in August 1984, within the first year following the appellant's separation from National Guard service. Again, the appellant is not entitled to the presumptions accompanying Veteran status. 38 C.F.R. § 3.6(a). Service connection based on National Guard service is available for injury incurred in ACDUTRA or INACDUTRA. Here, the injury was after separation from the National Guard, and therefore, did not occur during ACDUTRA or INACDUTRA. Hence, the Board finds that the preponderance of the evidence is against a finding that the appellant has residuals of a left thumb and hand injury that either had their onset during ACDUTRA or INACDUTRA. Thus, service connection for residuals of a left thumb and hand injury is not warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for a depressive disorder with panic attacks and anxiety is denied. Service connection for residuals of a left thumb and hand injury is denied. REMAND The appellant contends that service connection for residuals of a low back injury is warranted on the basis that he had fallen off of a two-and-a-half ton truck and hurt his back on an icy street, when he was deployed with his National Guard unit to Scituate, Massachusetts, during the 1978 blizzard. VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability, establishes that the appellant suffered an event, injury or disease in service, and indicates that the current disability may be associated with the in-service event, injury or disease. 38 C.F.R. § 3.159(c)(4) (2012). Here, the current medical evidence establishes that the appellant has chronic low back pain; and that he underwent surgical procedures in 1999 and in 2003. Post-National Guard records show that the appellant had injured his low back at work in August 1999, when he twisted while moving some jugs. At that time, he complained of low back pain and some pain that radiated into his left leg. MRI scans then revealed disc desiccation L5-S1, with central disc herniation exhibiting a posterior excursion of approximately 5-to-6 millimeters, causing only mild central canal stenosis; and L3-L4 and L4-L5 levels were unremarkable. The physician noted that all findings were superimposed upon mild-to-moderate degenerative facet disease at all levels examined. Diagnoses in April 2002 included lumbar herniated disc; lumbar radiculopathy; and low back pain. Although the appellant's National Guard records are absent complaints or treatment for low back pain, he is a credible and reliable historian with regard to the observable symptoms he experienced in INACDUTRA. The question therefore remains whether the evidence indicates that there may be an association between his current low back disabilities and his National Guard service. The Board may seek further clarification when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The appellant is competent to describe his symptoms since falling off of a truck in 1978, and has done so, indicating that he has had low back pain ever since then. This is sufficient to trigger the duty to assist in obtaining a medical examination and opinion as to the etiology of his currently diagnosed low back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain recent VA treatment records for low back disabilities, that have yet to be associated with the appellant's claims folder (physical or electronic). 2. Schedule the appellant for a VA examination to determine the nature and etiology of his diagnosed low back disabilities. The claims file, and any pertinent records contained in any electronic claims folder, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on the review and physical examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that the appellant's low back disabilities are medically related to his National Guard service-specifically, his fall off of a truck and onto an icy street in 1978 as reported by the appellant, and the appellant's claim of continuing low back pain since then. Attention is invited to the August 1999 clinical finding that the current disc abnormalities were "superimposed upon" mild to moderate degenerative facet disease. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is also advised that the appellant is a credible and reliable historian with regard to the observable symptoms he experienced in National Guard service, regardless of the lack of documented complaints in the National Guard treatment records. The underlying reasons for any opinion expressed is required. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The appellant and his representative should be afforded the applicable time period in which to respond. No action is required of the appellant and his representative until they are notified by the RO or AMC; however, the appellant is advised that failure to report for any scheduled examinations may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs