Citation Nr: 1319705 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-32 119A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a breast condition, to include breast cancer. 2. Entitlement to service connection for liver cancer. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a psychiatric disorder. 6. Entitlement to an initial rating in excess of 30 percent for migraines. 7. Entitlement to an effective date earlier than June 29, 2010 for the grant of service connection for migraines. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran had active service from January 1990 to June 1991. The Veteran served with the Mississippi Army National Guard both before and after her period of active service. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied the Veteran's claims for service connection, and an October 2012 rating decision that granted the Veteran's claim for service connection for migraines and assigned a 30 percent rating. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is in the Veteran's file. The issues have been recharacterized to comport with the evidence of record. These claims were previously before the Board in September 2012. At that time, the Board granted the Veteran's claim for service connection for migraines and remanded each of the Veteran's service connection claims. The ordered development has been completed for the claims being decided. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for a breast condition and for a psychiatric disorder, entitlement to an increased initial rating for migraines, and entitlement to an earlier effective date for the award of service connection for migraines 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. The competent evidence does not show that the Veteran's liver cancer is related to her active service. 2. The competent and credible evidence does not show that the Veteran currently suffers from a right knee disability. 3. The competent and credible evidence does not show that the Veteran currently suffers from a left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for liver cancer have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. With regard to the duty to notify, in her March 2012 hearing, the Veteran waived any error in the content or timing of the notice she received. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Following the Board's September 2012 remand, the Veteran was asked to provide additional private treatment records or to allow VA to obtain them on her behalf; she did not respond to this request. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have been obtained. VA examinations were conducted in October 2011 and March 2013. Though the Board found the October 2011 VA liver examination to be inadequate, the Veteran has not argued, and the record does not reflect, that the March 2013 examinations for her liver and knees were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations provided answers to specific questions raised by the Board in its remand and they contain sufficient information to determine whether service connection for her claimed conditions is warranted. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Service Connection Claims Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinkseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Entitlement to Service Connection for Liver Cancer The Veteran was diagnosed as suffering from liver cancer, specifically hepatocellular carcinoma, in March 2006. She underwent an extended right hepatectomy on March 6, 2006. She has received ongoing treatment for this condition and its complications. The Veteran's service treatment records do not show that she suffered from this condition during her active service. However, the Veteran states that she suffered from nausea during her active service, and a June 1990 record shows that she sought treatment for this complaint. The Veteran further states in letters of May 2011 and November 2012 that doctors at the Ochsner Medical Institutions where her surgery was performed, and where she continues to receive treatment, informed her that her tumor had existed for at least 15 years, placing the date of onset during her active service. There is no competent evidence linking the Veteran's liver cancer to her active service. The Veteran underwent a VA examination in March 2013. The examiner reviewed the Veteran's claims file and examined the Veteran. He stated that it is less likely than not that the Veteran's follicular hepatocelluar carcinoma had its onset in or is related to the Veteran's military service. The examiner noted that the Veteran was pregnant at the time of her in-service complaints of nausea, vomiting, and dizziness. As these are symptoms commonly associated with pregnancy, he concluded that these symptoms are less likely than not associated with her later cancer diagnosis. He also stated that medical literature does not support a link between the environmental hazards of Gulf War service and hepatocelluar carcinoma. Instead, he noted the Veteran's strong family history of cancer, and concluded that her liver cancer is more likely than not caused by the Veteran's strong positive genetic family history of cancer. The Veteran contends that her cancer is related to her active service, citing her doctors' statements that her tumor had existed for 15 years. The Veteran's representative also argued in her March 2012 hearing that her cancer could be related to the environmental and biological hazards present during the Persian Gulf War. Neither the Veteran nor her representative is competent to offer a diagnosis or provide an etiology of the claimed disability. Determining the etiology of the Veteran's liver cancer requires specialized education, training, or experience and is not susceptible to lay observation. See Jandreau, 492 F.3d at 1377, n.4 ("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."). Further, the VA examiner specifically addressed both the Veteran's in-service complaints of nausea and her service in the Persian Gulf, and he concluded that her cancer was not related to these in-service circumstances. In any event, the VA examiner's opinion is far more probative than the Veteran's statement that doctor's "told her" that her present condition occurred during her active service. And, even if she was told that her condition occurred during her active service, such is sufficiently refuted by the VA examiner's explanation of why such was not the case. None of the private treatment records submitted by the Veteran support her contentions; indeed these records are silent as to the etiology of her liver cancer. These records also do not reflect that her tumor had been present for 15 years. The Veteran's cancer diagnosis is also too far removed from her active service as to qualify for the one year presumption. Pursuant to VA regulation, certain chronic disabilities that are manifest to a degree of 10 percent within one year of separation are granted service connection despite the lack of evidence of in-service incurrence; malignant tumors are included in this presumption. 38 C.F.R. §§ 3.307, 3.309. The Veteran's cancer, however, was not diagnosed until March 2006, almost 15 years after the date of her separation from active service. The presumption is not applicable. The preponderance of the evidence is against the claim for service connection for liver cancer; there is no doubt to be resolved; and service connection for liver cancer is not warranted. Entitlement to Service Connection for Right and Left Knee Disabilities The Veteran contends that she currently suffers from bilateral knee disabilities. In a May 2011 letter, she stated that she injured both of her knees during her active service, and that her knees still bother her. In her March 2012 hearing, the Veteran stated that she suffered from bilateral knee problems during her active service and has suffered continuously since that time. Specifically, she stated that she dislocated one knee cap and suffered torn ligaments as well. At her March 2013 VA examination, the Veteran reported injuring her right knee after a fall, resulting in a patellar dislocation for which she was put on profile. She reported intermittent pain in both knees since her in-service injury, as well as stiffness, weakness, swelling, giving way, and locking. The Veteran's service treatment records reflect that, in May 1990, she complained of suffering from right hip and left knee pain after stepping in a hole while running. She was diagnosed as suffering from a hip and knee sprain. Her service treatment records are silent for any further complaints of or treatment for bilateral knee conditions. On her June 1991 report of medical history at separation, the Veteran denied suffering from any bone, joint, or other deformity, as well as any trick or locked knee. Her June 1991 medical examination at separation was silent as to any knee disability. There is no evidence that she suffered a right knee dislocation or that she was put on profile for this injury. Despite the Veteran's contentions and the evidence of an in-service left knee injury, there is no competent evidence that the Veteran currently suffers from any particular right or left knee disability. The Veteran's VA treatment records are silent as to her being diagnosed as suffering from any knee disability, and she has not received treatment for any right or left knee disabilities. The only evidence of the Veteran's complaining of any bilateral knee pain comes in an October 2011 VA fibromyalgia examination, in which the Veteran was found to be suffering from medial joint line pain in both knees associated with fibromyalgia. She was not, however, diagnosed as suffering from a separate knee disability associated with this claimed pain. The private records she submitted are similarly silent as to her suffering from any bilateral knee condition. The examiner from her March 2013 VA examination concluded that the Veteran does not currently suffer from any right or left knee disability. During her examination, the examiner reported that the Veteran had full range of motion in both her knees with no objective evidence of painful motion. The Veteran was able to perform repetitive motions, and this motion did not result in any further loss of range of motion or functional limitation. She had no knee tenderness or pain and her muscle strength was reported as normal, as were instability tests. There was no evidence or history of recurrent patellar sublaxation or dislocation. X-rays of the Veteran's knees showed that no bony, joint, or soft tissue abnormalities were seen. The knee joint spaces in both knees were well preserved. The impression was normal right and left knees. The examiner concluded that there was insufficient evidence to warrant or confirm a diagnosis of an acute or chronic bilateral knee disorder or its residuals. He stated that her knee examination was within normal limits, and knee X-rays were normal. Though the Veteran contends that she suffered bilateral knee disabilities during her active service and continuously thereafter, these reports are not credible. The Veteran specifically stated in her March 2012 hearing and her March 2013 examination that she suffered a right patellar dislocation during her active service. Though her service treatment records do show that she suffered a left knee and right hip injury, these records do not reflect that the Veteran suffered any right knee injury or that her left knee injury was as severe as she described. Her claims of a continuity of symptomatology are contradicted by both her June 1991 report of medical history in which she denied suffering from any knee trouble as well as her extensive post-service medical records which contain no information regarding any bilateral knee diagnoses or treatment. Further, though the Veteran contends that her knees bother her and cause her problems, she has never stated from what particular bilateral knee disability she suffers. To the extent that she contends that she suffers from knee pain, pain alone is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Even accepting her statements at face value, there remains no competent evidence that she currently suffers from any particular bilateral knee disability, and "in the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claims for service connection for right and left knee disabilities; there is no doubt to be resolved; and service connection for right and left knee disabilities is not warranted. ORDER Entitlement to service connection for liver cancer is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. REMAND The Veteran's remaining claims must be remanded. First, with respect to the Veteran's claim for service connection for a breast condition, the Veteran has continuously maintained that she was diagnosed as suffering from breast cancer in 1999. She has not, however, provided any medical records confirming this diagnosis, and the examiner from her March 2013 VA examination concluded that it is less likely than not that she has ever suffered from breast cancer. That being said, the Veteran's service treatment records do show that she complained of a left breast mass in June 1990 and July 1990. She was diagnosed as suffering from probable fibrocystic breast disease. She has also steadfastly maintained in both VA and private treatment records that she underwent breast reduction surgery in 1999, and that 3 cysts were removed from her breasts. Whether these cysts were cancerous or not, service connection may still be warranted if it is shown that her surgery or the cysts that were removed are related to her in-service complaints. The examiner did not state whether the Veteran's claimed 1999 surgery was related to her in-service complaints, nor did he state whether she suffers from any complications or residuals of that 1999 surgery. The Veteran must be afforded a new VA examination to answer these questions. With regard to her claim for service connection for a psychiatric disorder, the Veteran has undergone VA examinations in October 2011 and March 2013. Both of these examinations found that the Veteran suffered from bipolar disorder that was resolved, and both contained an Axis II diagnosis of borderline personality disorder. While personality disorders are not diseases or injuries subject to service connection, the Veteran has received a number of mental disorder diagnoses, both before and during the pendency of her claim. A September 2005 record from Forrest General Hospital reflects that the Veteran was diagnosed as suffering from bipolar disorder (severe with psychotic features) and PTSD, and that she was given an Axis II diagnosis of borderline personality disorder. A December 2008 VA mental health note reflects that the Veteran was diagnosed as suffering from bipolar disorder. A separate December 2008 VA mental health consult diagnosed the Veteran as suffering from acute and chronic psychosis, bipolar disorder, and obsessive compulsive disorder, as well as an Axis II diagnosis of borderline personality disorder. A February 2009 VA mental health outpatient note stated that the Veteran probably meets the criteria for both PTSD and borderline personality disorder. The requirement of a current disability may be met by evidence of the disability at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Given the varying diagnoses that the Veteran has received, she must be granted a new VA examination to determine whether the conditions from which she suffered during the pendency of her appeal are related to her active service. Finally, the Board granted service connection for migraines in its September 2012 decision. The October 2012 rating decision implementing this grant assigned a 30 percent disability rating and assigned an effective date of June 29, 2010. In a November 2012 notice of disagreement, the Veteran disagreed with both the disability rating and the effective date. These claims must be remanded in order to allow the RO to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). These claims should then be returned to the Board only if the benefit continues to be denied and the Veteran perfects an appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records dated from June 2012 and thereafter and associate them with the claims folder. 2. Schedule the Veteran for a VA examination by an appropriate medical professional to diagnose and determine the etiology of any breast condition diagnosed. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After examining the Veteran, the examiner is to answer the following questions: a) Does the Veteran suffer from any residual disabilities as a result of her 1999 breast surgery, including scars or alteration of size or form of the breasts? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's 1999 breast surgery and any resulting residuals had their onset in service or are otherwise related to service? In answering these questions, the examiner must consider the Veteran's service treatment records which document a left breast mass and a diagnosis of probable fibrocystic breast disease. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA psychiatric examination by an appropriate medical professional to determine the current nature, history, and etiology of her psychiatric disorders. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After examining the Veteran, the examiner is to answer the following questions: a) From what psychiatric disorders does the Veteran currently suffer? b) Over the course of the appeals period, from what psychiatric disorders did the Veteran suffer? c) Is it as likely as not (a 50 percent or greater probability) that any psychiatric disorder from which the Veteran currently suffers or has suffered over the course of the appeals period had its onset in service or is otherwise related to her active service? The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Provide the Veteran with a statement of the case with regard to her increased initial rating claim and earlier effective date claim. Should the full benefit sought be denied, notify the Veteran that, in order to perfect an appeal of the claim to the Board, she must timely file a substantive appeal. 5. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If any of the benefits remain denied, issue a supplemental statement of the case and provide the Veteran and her representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Department of Veterans Affairs