Citation Nr: 1319710	
Decision Date: 06/19/13    Archive Date: 06/27/13

DOCKET NO.  08-11 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for acquired psychiatric disability to include post-traumatic stress disorder (PTSD), depression, and a sleep disorder.

2.  Entitlement to service connection for a left wrist burn scar.

3.  Entitlement to service connection for a digestive disorder to include acid reflux.

4.  Entitlement to service connection for residuals of a cold injury to the hands.

5.  Entitlement to service connection for residuals of a cold injury to the feet.

6.  Entitlement to service connection for a sleep disorder.

7.  Entitlement to service connection for residuals of injuries to the fingers of the left hand.

8.  Entitlement to service connection for a left hand disability.

9.  Entitlement to service connection for erectile dysfunction (ED) to include as secondary to hypertension.

10.  Entitlement to service connection for a right hand disability.

11.  Entitlement to service connection for bilateral knee disabilities.

12.  Entitlement to service connection for a left shoulder disability.

13.  Entitlement to a disability rating higher than 20 percent from November 1, 2009 for right shoulder rotator cuff tear with impingement syndrome.

14.  Entitlement to an initial disability rating in excess of 20 percent for right shoulder scars as a residual of an arthroscopy.

15.  Entitlement to an increased disability rating for hypertension, currently rated as 10 percent disabling.

16.  Entitlement to an increased disability rating for bilateral hearing loss, currently rated as 10 percent disabling.

17.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Allen Gumpenberger, representative


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel

INTRODUCTION

The Veteran served on active duty from October 1978 to October 1981 and from March 1983 to October 2001.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In a January 2005 rating decision, the RO denied service connection for PTSD and residuals of a cold injury to the hands and feet.  In a February 2007 rating decision, the RO denied service connection for a left wrist burn scar, a digestive disorder, a sleep disorder, residuals of injuries to the fingers of the left hand, and a left hand disability.  In an October 2008 rating decision, the RO denied service connection for ED, depression, a right hand disability, bilateral knee disabilities, and a left shoulder disability.  The RO also continued a 10 percent disability rating for hypertension and denied a TDIU.  In a July 2009 rating decision, the RO continued a 10 percent rating for bilateral hearing loss.  In a February 2010 rating decision, the RO increased the rating for his right shoulder rotator cuff tear with impingement syndrome to 20 percent, and assigned an initial 20 percent disability rating for right shoulder scars residual to arthroscopy.

It is noted that the March 2009, supplemental statement of the case listed the claim for service connection for cold weather exposure residuals of the four extremities as having been previously denied in 2005 and requiring new and material evidence to reopen it.  However, it is noted that within a year of the 2005 rating decision, the Veteran did submit new and material evidence, including statements of cold weather exposure and treatment records.  As such, the 2005 denial is not considered to have become final.  See 38 C.F.R. § 3.156(b).  

The Veteran initiated an appeal for service connection for left and right ankle disabilities.  The appeal as to those issues was resolved in a March 2008 rating decision when the RO granted service connection for chronic left and right ankle sprain.

The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence.

The issues of service connection for cold injury of the hands and feet, a right hand injury, an acquired psychiatric disability, to include PTSD, and bilateral knee disabilities, for higher ratings for right shoulder rotator cuff tear with impingement syndrome and right shoulder scars residual to arthroscopy, and for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  In July 2010, prior to promulgation of a decision, the Veteran wrote that he was withdrawing his appeals for a left wrist burn scar; digestive disorder; a sleep disorder (aside from his psychiatric claim); injuries of fingers of the left hand; left hand injury; hypertension; and bilateral hearing loss. 

2.  The Veteran's ED is caused by medication to treat his service-connected hypertension.

3.  Left shoulder arthritis and tearing did not manifest until several years after service, and has not been related to the Veteran's military service.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the Veteran on the issues of service connection for a left wrist burn scar, for a digestive disorder, for a sleep disorder, for residuals from injuries to the fingers of the left hand, and for a left hand disability, and the appeals for increased ratings for bilateral hearing loss and hypertension, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  The Veteran's ED is proximately due to or the result of his service-connected hypertension.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310 (2012).

3.  A left shoulder disability was not incurred or aggravated in service, and may not be presumed to be service connected.  38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determinations being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).

In July 2010, the Veteran wrote that he was withdrawing his appeals for a left wrist burn scar; a digestive disorder; a sleep disorder (aside from his psychiatric claim); injuries of fingers of the left hand; a left hand disability; hypertension; and bilateral hearing loss. 

Thus, with respect to those claims, there is no remaining allegation of error of fact or law for appellate consideration, and the appeal is withdrawn.  Accordingly, the Board does not have jurisdiction to review the appeals of those claims, and the appeals of those claims are dismissed.

II.  Service Connection

In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection for certain chronic diseases, including psychoses, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service.  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

ED

The Veteran contends that he has ED as a result of medication he takes for his service-connection hypertension.  Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).

In June 2010, a private urologist wrote that he had evaluated the Veteran for ED.  The doctor noted that the Veteran had experienced ED since approximately 1994 when he began taking antihypertensive medication.  He explained that antihypertensive medications are highly directly correlated with ED, and opined that the Veteran's use of this medication was the most likely etiologic factor for his ED.

In a February 2011 VA examination, the examiner provided the opinion that the Veteran's ED was as likely as not related to hypertension medications.

Competent medical opinions support the likelihood that medication used to treat the Veteran's service connected hypertension causes his ED.  The Board accordingly grants service connection for ED as secondary to hypertension.

Left Shoulder Disability

The Veteran contends that he has a current left shoulder disability as a result of his military service, and has specifically alleged that he fell off a tank in service, injuring his shoulders.  However, his service treatment records are silent for any complaints involving the left shoulder.  The Veteran's service treatment records do show that he received treatment for right shoulder pain in 1996, and he has subsequently been service connected for a right shoulder disability.  However, once again, while he received treatment for his right shoulder during service, no mention was made of his left shoulder and no treatment appears to have been provided for any left shoulder problems or symptoms.  In fact, on a medical history survey completed in conjunction with his separation physical in April 2001, the Veteran specifically denied any shoulder problems.  It is also noted that the Veteran did note the presence of several conditions on the survey, meaning that he took the time to review the form and did not simply deny having any disabilities categorically.  This provides additional evidence that the Veteran did not incur a left shoulder disability during service., and was not experiencing any left shoulder disability at separation.

Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Arthritis is among the chronic diseases for which VA presumes service connection if it manifests to a degree of 10 percent disabling or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).  Here, x-rays from September 2007 showed degenerative changes in each shoulder, and an MRI showed evidence of partial tears in each shoulder.  

As such, because x-rays showed degenerative changes in the left shoulder in September 2007, the Veteran is considered to currently have a chronic disability pursuant to 3.303(b).  However, as will be discussed, there is no showing of arthritis of the left shoulder either during service or in the year following the Veteran's separation from service.  Likewise, symptoms of the Veteran's current left shoulder disability have not been shown to have been continuous from service.

As noted, the Veteran's service treatment records are silent for any left shoulder treatment or complaints.  The Veteran separated from service in October 2001.  At a general medical VA examination in May 2001, no left shoulder disability was complained of, or noted, and the Veteran was observed to have normal range of motion in his extremities.  Similarly, at a private treatment session with Dr. Truman in September 2005, the Veteran did not report any left shoulder problems, and Dr. Truman found no tenderness, enlargement, instability, or weakness of the Veteran's left shoulder. 

At his July 2007 DRO hearing, the Veteran reported that he currently he had right and left shoulder problems, which a doctor had allegedly described as inflammation.  The Veteran then asserted that he had experienced shoulder problems during service.  However, as noted above, such an assertion is not supported by the service treatment records, and is actually refuted by the Veteran's specific denial of any shoulder problems on a medical history survey completed in April 2001.  This is relevant, as contemporaneous evidence is considered to have greater probative value than history as reported years later by a veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).  

Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  For example, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Here, while the Veteran has sought service connection for a left shoulder disability, he has provided little evidence as to why he believes his current left shoulder disability is actually related to service.  To the extent that he has reported injuring his both shoulders falling off a tank, the Board concludes that this statement is refuted by the fact that service treatment records only show treatment for the right shoulder.  Had the Veteran in fact injured both shoulders in such a fall, one would have expected the treatment to have involved both shoulders.  The Veteran also denied any shoulder problems on a medical history survey completed in 2001, also weighing against any finding of in service injury.    

While the Board is often prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous records, silence in a record can sometimes be relied upon as contradictory evidence; specifically, the silence in record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder.  See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (discussing credibility in relation to medical evidence); Fed. R. Evid. 803 (7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).  For this negative inference to be made, the Board must make two findings: first, that the record being evaluated is complete in relevant part; and, second, that the injury, disease, or related symptoms would ordinarily have been recorded had they occurred.  The Board makes both findings in this case.
 
It is clear from the dozens of pages of service treatment records that the Veteran was willing to seek medical treatment while in service.  The service treatment records even show that he sought shoulder treatment, as he did in fact seek right shoulder treatment.  As such, the lack of any treatment for his left shoulder is taken as evidence that the left shoulder was not injured during service. 

There has also been suggestion in at least two psychiatric treatment records that the Veteran has either been malingering or has overreported/overendorsed symptomatology.  This fact too weighs against the Veteran's credibility.  Given the evidence described above, the Board makes the following factual finding: the Veteran did not injure his left shoulder during service.

Following service, there is no indication that the Veteran had any left shoulder problems for a number of years.  For example, the VA examination in May 2001 showed the Veteran to have normal range of motion in his extremities; and Dr. Truman found no tenderness, enlargement, instability, or weakness of the Veteran's left shoulder in September 2005.  The first evidence of a left shoulder disability did not appear for approximately six years after the Veteran separated from service; and in a VA treatment record from September 2007, the Veteran reported only a several year history of pain in both shoulders.  Thus, while he Veteran reported experiencing a several year history of shoulder pain, he had been out of the military for nearly six years at that point; meaning he had been out of the military for more than several years.

The Veteran did not complain of any left shoulder symptoms either in service, or prior to 2007, that is more than five years after separating from service.  In 2007 imaging showed left shoulder arthritis; but as noted this manifestation of arthritis in the Veteran's left shoulder was not to a compensable degree within the year following his separation from service as it manifested more than five years after separation.  As such, the arthritis may not be presumed to be service connected.  Even accepting the Veteran's assertions as fact, the evidence does not suggest that the left shoulder arthritis began within a year of service.  For example, in 2007 the Veteran stated that he had experienced left shoulder pain for several years and in private treatment in 2005 he actually denied having experienced any left shoulder symptoms and his physician found no left shoulder impairment.  

The service treatment records do not show that the Veteran experienced any left shoulder injury or disease or other event any causing left shoulder symptoms while in service.  Not only that, but the Veteran did seek treatment for right shoulder pain during service, but did not mention any left shoulder problems at that time; and he specifically denied any shoulder problems in 2001.  As noted above, the Veteran's report of an in-service injury to his left shoulder is not found to be credible.  As such, while the evidence establishes the presence of a current left shoulder disability, there is no evidence of an in-service left shoulder injury.  Moreover, there is no medical opinion which even suggests that the Veteran's current left shoulder disability either began during or was otherwise caused by his military service.  As such, VA does not have a duty to obtain a VA examination or opinion to address the question of service origin of the current left shoulder disorder.

It is also noted that as a lay person, the Veteran lacks the medical training and expertise to provide a complex medical opinion such as determining the etiology of his left shoulder disability.  See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  As such, his opinion is insufficient to provide the requisite nexus in this case. 

In conclusion, the preponderance of the evidence indicates that the arthritis and other degeneration found in the Veteran's left shoulder a number of years after service was not present during service and was not incurred in service.  The Board therefore denies service connection for a left shoulder disability.


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b).  The Court has stated that the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The RO provided the Veteran with VCAA notice in letters issued in August 2004, January, February, and March 2006, September 2007, June 2008, and February and September 2009.  Those letters addressed the information and evidence necessary to substantiate claims for service connection, for increased disability ratings, and for a TDIU, and informed the Veteran how VA assigns effective dates.  The letters also addressed who was to provide the evidence.

The claims file contains the Veteran's service treatment records, post-service treatment records, VA examination reports, statements from the Veteran and persons who know him, and the transcript of the July 2007 DRO hearing.  The Veteran was also scheduled on several occasions to testify at a hearing before the Board, but he withdrew his hearing request on multiple occasions, as documented in the claims file. 

While a VA medical opinion was not provided with regard to the Veteran's claim for service connection for a left shoulder disability, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

The record in this case is negative for any indication, other than the Veteran's own assertion that his left shoulder disability is secondary to his military service.  That is, no medical opinion of record has been offered even suggesting a possible link.  Moreover, the only evidence relating the Veteran's current left shoulder disability to his military service is his own opinion; but as noted above, this opinion was not found to be sufficiently credible to establish an in-service shoulder injury.  As such, the Veteran's conclusory lay statement suggesting that his left shoulder disability is the result of his military service is insufficient to trigger VA's duty to provide an examination with an opinion.  See Waters, 601 F.3d 1274.  

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran has actively participated in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.  Any error in the sequence of events or content of the notice is not shown to have either affected the essential fairness of the adjudication or to have caused injury to the Veteran's interests.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time.  See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).




ORDER

The appeals for service connection for a left wrist burn scar, for a digestive disorder, for a sleep disorder, for injuries of fingers of the left hand, for left hand injury are dismissed.

The appeals for increased disability ratings for hypertension and for bilateral hearing loss are dismissed.

Service connection for ED is granted.

Service connection for left shoulder disability is denied.


REMAND

Frostbite Residuals 

The Veteran contends that he has pain, tingling, and numbness in his hands and feet which he believes are residuals of cold weather exposure during service.  The Veteran reported that he spent most of his service time in Germany and at Fort Drum in New York.  The examiner noted that while the Veteran was in service from 1986-1993, he did physical training on a nearly daily basis which reportedly exposed him to severe cold weather in the wintertime for 2-3 hours per day.  While in Germany from 1979-1986, the Veteran asserted that he worked in cold weather 8-10 hours per day.  The Veteran was provided with a cold weather protocol examination in June 2004 at which he reported having experienced redness and swelling in both hands and feet during service, that his skin had turned whitish at times, that he had a stinging sensation in his feet, hands, face, and ears, that parts of his feet were clammy all the time, and that he had numbness in both feet, hands and ears.  However, he denied receiving any medical treatment for frostbite or frostbite residuals while in service, although he stated that he was taken of guard duty for 2-4 weeks each time.  The Veteran reported that he currently experienced tingling and pain in his hands and feet, and that he wore 3 pairs of socks everyday despite what the outside temperature is.  However, the examiner found no amputations or tissue loss, no Reynaud's phenomenon, no hyperhydrosis, no recurrent fungal infections, no breakdown or ulceration of frostbite scars, and no disturbance of nail growth.  The Veteran also denied any current treatment for frostbite residuals.  Private treatment records from July 2005 note the Veteran's complaints of joint pains which he felt were related to the cold weather exposure in service; but more recent VA treatment records do not appear to list any frostbite residuals under the Veteran's past medical history, and it is not clear that he currently receives treatment for any frostbite residuals.  As such, medical clarification is needed.

Acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) 

The Veteran is currently seeking service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).  

Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f). 

In general for service connection to be granted for PTSD, the diagnosis of PTSD must be based on a verified/corroborated stressor.  Exceptions exist when for example a Veteran is diagnosed with PTSD during service, when a Veteran served in combat, or when the stressor is related to the fear of hostile military or terrorist activity.  However, none of these exceptions have been shown to be present in the Veteran's case.  The Veteran never served in combat and there is no allegation to the contrary.  His stressors are also not related to the fear of hostile military or terrorist activity, as was explained in a VA psychiatric examination in February 2011.

In February 2006, the Veteran described traumatic experiences during service, noting that he had witnessed the deaths of soldiers from assaults by other soldiers (the Veteran asserts that a soldier was stuffed in a foot locker and thrown out a third story window) and from accidental electrocution (when a tank in his convoy struck an electrical wire).  At a July 2007 Decision Review Officer hearing, the Veteran related that during service he witnessed a soldier's suicide by gunshot to the head.  Over the pendency of his claim and appeal, the Veteran has described those stressors again several times.  

A newspaper article was submitted describing the tank electrocution, but the article was dated in July 1982.  Likewise, the RO was able to determine that a soldier fell out the fourth floor barracks room to his death in Ansbach, Germany in January 1983.  However, the DD-214s which are of record show that the Veteran was in service from October 1978 to October 1981 and from March 1983 to October 2001.  As such, he would not have been in service during either of the corroborated incidents.  Service treatment records appear to support the conclusion that the Veteran was not in service from October 1981 to March 1983 as a enlistment physical in June 1982 noted that the Veteran was a civilian and was enlisting in the navy.  Additionally, the DD-214 from the Veteran's second period of service noted only two years and eleven months of prior service, that is the precise amount of service that was shown on the previous DD-214.  From a reading of the Veteran's statements it appears that he contends that he was in service from age 17 to age 45.  On remand, he is invited to produce evidence that he was in service between October 1981 and March 1983.

As described, a reported stressor has yet to be corroborated as having taken place during the Veteran's military service, and therefore, while the current medical evidence of record does show a number of diagnoses of PTSD, service connection simply cannot be granted.

The issue of an acquired psychiatric disability, other than PTSD is also of record.  Service treatment records show that in October 1987 the Veteran was found to have high blood pressure, and he reported being tense and nervous and having difficulty sleeping.  At a January 1989 treatment session, the Veteran reported anxiety.  No mental disorders were noted on the Veteran's April 2001 separation physical, and the Veteran specifically denied having any nervousness, frequent trouble sleeping, depression, or excessive worry on a medical history survey completed in conjunction with his separation physical. 

Following service, VA and private records show mental health treatment from 2003 forward.  The Veteran reported depression, anxiety, nervousness, difficulty sleeping, problems with anger, and a history of substance abuse and dependence.  It has also been noted that the Veteran's wife of more than 20 years divorced him after the conclusion of his service.  In fact, in February 2003, a doctor (who reported having treated the Veteran since August 2002) wrote that the Veteran had experienced an onset of emotional trauma after being incarcerated because his ex-wife had claimed that she did not receive any child support.  The doctor stated that the Veteran was under ongoing emotional anguish and stress. 

In 2005 the Veteran indicated that while he was in service he had received anger management treatment.  He reported having had traumatic experiences during service.  In December 2005, a VA clinician provided a diagnosis of PTSD.  Private doctors have also diagnosed him with PTSD; although multiple VA examiners (in October 2007 and September 2008) have questioned whether that is the appropriate diagnosis.

At a February 2011 VA examination the Veteran was diagnosed with depression secondary to his PTSD. 

However, an opinion has not been obtained addressing whether the Veteran has an acquired psychiatric disability, other than PTSD, that either began during or was otherwise caused by his military service.  

Additionally, Dr. Truman wrote in July 2010 that the Veteran's representative had suggested that there was a gap in the Veteran's medical records for his PTSD treatment between January 1989 and September 2005 (although the private treatment records from 2002 have been submitted since).  Specifically it was stated that the Veteran was treated for major depressive disorder between 2001-2002 at the VA hospital in Wisconsin.  It was also noted that the Veteran had been in psychiatric in the military since 1989.  However, it is unclear whether the Veteran received any psychiatric treatment in service, beyond what is described above.  As such, on remand, the Veteran should be asked to identify any facility at which he received any psychiatric treatment during service.

Other Issues

In the October 2008 rating decision, the RO denied service connection for several claimed disorders, including a right hand injury and bilateral knee disabilities.  In October 2008, the Veteran submitted a notice of disagreement (NOD) with all of the issues denied in the October 2008 rating decision.  When a claimant files a timely NOD, the agency of original jurisdiction (in this case, the RO) must prepare and send to the claimant a statement of the case (SOC).  The Court has indicated that, when a claimant submits an NOD, and the RO does not issue an SOC, the Board should remand the matter to the RO for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

The RO issued SOCs addressing some of the claims denied in the October 2008 rating decision, but has not issued any SOC that addresses the service connection claims for right hand injury and bilateral knee disability.  The Board therefore remands those issues for the RO to issue an SOC that addresses both issues.

In a March 2008 rating decision, the RO granted service connection for right shoulder rotator cuff tear with impingement syndrome.  The RO assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5024.  In August 2009, the Veteran underwent right shoulder arthroscopic surgery.  The surgery included rotator cuff repair, release and tenodesis of the biceps tendon, and subacromial decompression.  In September 2009, the Veteran requested a temporary total disability rating for convalescence from the surgery and he requested reevaluation of the right shoulder disability.  In a February 2010 rating decision, the RO granted a temporary total convalescent rating from August 21, 2009, the date of the surgery, through October 31, 2009.  From November 1, 2009, the RO assigned a 20 percent disability rating under Diagnostic Code 5024 for right shoulder rotator cuff tear with impingement syndrome.  Effective August 21, 2009, the RO granted separate service connection for right shoulder scars residual to arthroscopy.  For those scars the RO assigned an initial 20 percent disability rating under 38 C.F.R. § 4.118, Diagnostic Code 7804.  The Veteran has appealed the ratings the RO assigned in February 2010.

The Veteran had a VA examination of his right shoulder in October 2009, two months after the surgery.  To determine the ongoing condition of the shoulder and the surgical scars after the initial recovery from the surgery a more recent medical examination is needed.  The Board therefore will remand the right shoulder disability rating issues for a current examination.

In seeking a TDIU, the Veteran contends that the combined effects of his service-connected disabilities make him unable to secure or follow a substantially gainful occupation.  However, adjudication of that claim is inextricably intertwined with the outcomes of the matters which are being remanded, and it must be remanded as well. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The RO should provide the reviewing physicians all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claims.

Accordingly, the case is REMANDED for the following action:

1.  Issue a statement of the case with regard to the claims for service connection for right hand injury and service connection for bilateral knee disabilities.  The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue.  If a timely substantive appeal is not filed, the claim should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 

2.  Contact the Veteran and ask him to: a) provide evidence to substantiate his claim that he was in service between October 1981 and March 1983, and b) identify all the facility(ies) at which he received any mental health treatment during service, and the approximate dates of such treatment.  Then request psychiatric treatment records from each identified facility.   

3.  Schedule the Veteran for a VA psychiatric examination.  The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed.  The examiner should diagnose the Veteran's Axis I and/or Axis II psychiatric disability or disabilities, and then should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any acquired psychiatric disability, other than PTSD, either began during or was otherwise caused by the Veteran's military service.

In doing so, the examiner should address the Veteran's in-service psychiatric treatment for situational anxiety, as well as the subsequent findings that he was psychiatrically normal at separation.  The examiner should also address the relevance, if any, of the Veteran's divorce shortly after service and his resulting emotional difficulties.  

4.  Schedule the Veteran for a VA examination.  The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed.  

The examiner should determine whether the Veteran currently has, or has had for any definite period of time since 2004, any current frostbite residuals in his upper extremities and/or his lower extremities.  If any frostbite residuals are identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the residuals are the result of cold weather exposure in Germany and New York state during the Veteran's military service.  

In doing so, the examiner should specifically address the subjective evidence of tingling, numbness and joint pain in the Veteran's extremities that was noted at the June 2004 VA examination and in the 2005 private treatment records.  

5.  Schedule the Veteran for a VA examination to determine the current nature and severity of his right shoulder disability (rotator cuff tear with impingement syndrome and right shoulder scars residual to arthroscopy).   The Veteran underwent right shoulder arthroscopic surgery in August 2009.  

The examiner should provide current findings regarding the right shoulder disability and scars; including reporting the ranges of motion of the right shoulder, with consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  

6.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 

The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded.  The Veteran has the right to submit additional evidence and argument on those matters.  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).


______________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs