Citation Nr: 1320016 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-42 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a back disability on a direct service connection basis. 2. Entitlement to service connection for a back disability on a secondary service connection basis. 3. Entitlement to service connection for a bilateral foot disability on a direct service connection basis. 4. Entitlement to service connection for a bilateral foot disability on a secondary service connection basis. 5. Entitlement to service connection for hypertension on a direct service connection basis. 6. Entitlement to service connection for hypertension on a secondary service connection basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to November 1987. The Board notes that the Veteran's DD 214 shows that her character of service was under other than honorable conditions, however a VA decision in June 1989 determined that service was valid for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the benefits sought on appeal on the basis of direct service connection. A notice of disagreement was received in June 2008, a statement of the case was issued in September 2009, and a Substantive Appeal dated in November 2009 apparently was received in April 2010. The Veteran contended that she previously submitted a timely Form 9 Appeal and the RO in November 2011 accepted her appeal as timely. In a rating decision December 2011, the RO granted the Veteran's claim of entitlement to service-connection for posttraumatic stress disorder (PTSD) and this claim is no longer in appellate status. In the Form 9 Appeal the Veteran requested a Board hearing in the Central Office, however in December 2011 she withdrew her request for a Board hearing. A review of the Virtual VA paperless claims processing system includes VA records from 2011 to 2012 and records from the Social Security Administration (SSA). Other documents in the Virtual VA processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The Board has bifurcated the claims on appeal because additional development proposed in the remand may affect the outcome of these claims on a secondary service connection basis; however, such development is not expected to affect these claims on a direct service connection basis. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection), aff'd 631 F.3d 1380 (Fed. Cir. 2011). The issues of entitlement to service connection for a back disability, a bilateral foot disability, and hypertension as secondary to the service-connected PTSD are addressed in the REMAND below and are therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. A low back disability did not manifest during service, arthritis did not manifest during the one year presumptive period, and the current low back disability is unrelated to service. 2. A bilateral foot disability did not manifest during service and the current bilateral foot disability is unrelated to service. 3. Hypertension did not manifest during service or within the one year presumptive period, and the current hypertension is unrelated to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2012). 2. A bilateral foot disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided a pre-adjudication VCAA notice by letter dated in June 2007. The Veteran was notified of the evidence needed to substantiate the claims for service connection on a direct basis as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records, post-service treatment records, and lay statements have been associated with the record. In the instant case, the record does not show nor has Veteran referenced any missing service treatment records. While the service treatment records are sparse, in August 2007 the National Personnel Records Center confirmed that all available service treatment records were mailed. The Board notes that in January 2010, the Veteran's representative indicated that a CD Rom along with other records was forwarded. A review of the claims folder indicates that documents on the CD Rom were printed. In a May 2010 duty to assist letter the Veteran was informed of the records that were recently received and neither she nor her representative have contended that there were documents on the CD Rom that have not been associated with the claims folder. In June 2010 the Navy Medical Center in Portsmouth, Virginia verified that they did not have the Veteran's records. The Veteran was notified of the unavailability of these records in the April 2010 Supplemental Statement of the Case. While the Navy Medical Center in San Diego, California, confirmed in September 2010 that they did not have the Veteran's records, records dated 2004 to 2005 from this facility are in the claims folder. In May 2012 the Veteran indicated that she would be submitting additional records without a waiver for initial RO review, however she did not submit the records. A SSA decision letter in July 2005 denied the Veteran's claim. The Veteran had filed a claim for disability benefits with SSA due to her psychiatric disorder. More recently, VA records in October 2010 indicate the Veteran started receiving SSA benefits. However, the evidence shows that the SSA records are not pertinent to the issues on appeal. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the Veteran's claim, VA is required to assist the Veteran in obtaining the identified records. In this instance, the evidence in the file, to include the Veteran's statements, does not show that the SSA records would be relevant to these claims. In her December 2011 claim for a total disability rating based on individual unemployability, the Veteran stated that she could not work due to her psychiatric disorders. The Board, therefore, concludes that the file does not establish a reasonable possibility that the SSA records are relevant to the claims on appeal. The record does not indicate that a back disability, bilateral foot disability, and hypertension may be associated with the Veteran's service on a direct basis as there is no probative evidence of recurrent symptoms or continuity of symptomatology since service or other possible association with service. For these reasons, a VA medical opinion is not necessary to decide the claims. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for chronic disease such as arthritis and hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In the claim received in March 2007, the Veteran reported that she has had back problems since June 1997 and high blood pressure and problems with her feet since December 2004. In a June 2009 statement, the Veteran indicated that she had back problems since service as a result of the back pack that she had to carry. In November 2009 she indicated that her back went out and her blood pressure went up during anxiety attacks. She also reported that her feet hurt. In December 2009 the Veteran contended that her hypertension was the result of syncope, which the Board notes is not a service-connected disability. In May 2013, the Veteran's representative stated that she was sexually assaulted in service by her husband and her hypertension is due to those events. The representative also indicated that the Veteran had physical injuries to her back and feet. Service treatment records consists of the Veteran's enlistment examination in February 1983, which shows that her back and feet were normal. Her blood pressure was 110/70. In July 1987 the Veteran signed a statement declining to have a separation medical examination. After service, the medical records in May 2007 show the onset of back pain was 10 years earlier after the Veteran strained it. A July 2009 diagnostic report of the spine shows mild L3-4 disc space narrowing. A MRI in September 2009 shows mild disc bulge at L3-4 with mild bilateral foraminal narrowing. In June 2012 VA records show the Veteran had mild degenerative changes and degenerative disc disease of the lumbar spine. Post-service medical records in January 2005 show blistering of the feet. That same month the records show that the Veteran had bilateral foot pain and edema after walking many miles for weeks during a psychotic episode. The impression was bilateral hallux valgus. During a VA psychiatric evaluation in April 2007, the diagnoses included plantar fascitis and tinea pedis. In May 2007, VA records show that the Veteran had sore feet since 2005 when she jumped over a fence onto an airport tarmac during an acute psychotic episode. A VA podiatry consult in June 2007 provided an impression of tinea pedis. In June 2007, the diagnoses included arthropathy of the foot and ankle and dermatophytosis of the foot. As for hypertension, the medical records first show a diagnosis of essential hypertension in December 2004. Subsequent records show ongoing treatment for hypertension. Here, the service treatment records show that the Veteran's blood pressure on enlistment examination in February 1983 was normal and inconsistent with a hypertensive disability as defined by regulation 38 C.F.R. § 4.104. A review of the evidence, to include the Veteran's lay statements and medical records, shows that her bilateral foot disability and hypertension began in 2004. As for the back disability, the Board finds the Veteran's June 2009 statement that she had back problems since service not to be credible as it is inconsistent with the other evidence of record to include her March 2007 claim where she asserted that the onset of her back problems was in 1997. The lack of report of, diagnosis of, or treatment for a back disability, a bilateral foot disability, and hypertension until many years after service, warrants the conclusion that the bilateral foot disability, hypertension and the back disability did not manifest in service or for many years thereafter. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). It also follows that hypertension and the back disability, to include any degenerative joint disease, did not manifest within the one year presumptive period after service. Thus, there is no basis for a finding of continuity of symptomatology. As discussed earlier, the evidence is inadequate to warrant an examination or a medical opinion. In general, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). See also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology). The Board has carefully considered the Veteran's lay assertions in this regard. The Board acknowledges that a layman is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App 465, 470 (1994). The Veteran is competent to report symptoms, however hypertension and her back disability, manifested by degenerative changes and diagnosed as degenerative disc disease, may not be experienced through one of the five senses. While the Veteran is competent to report symptoms associated with her bilateral foot disability, such as blistering, edema, and pain, the diagnosis of her bilateral foot disability requires that a person be qualified through education, training, or experience to offer a medical diagnosis. 38 C.F.R. § 3.159. For this reason, her bilateral foot disability is not a simple medical condition and the Veteran is not competent to render a diagnosis. Furthermore, the determination as to the etiology of hypertension, back disability, and bilateral foot disability requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinion. In this instance, no connection, based on causation has been proposed between hypertension and service, the back disability and service, and the bilateral foot disability and service, except for the Veteran's and her representative's own statements that are not competent for reasons stated herein. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the instance case there are no Jandreau exceptions regarding the Veteran's contentions concerning hypertension, her back disability and bilateral foot disability. The Veteran's hypertension, back disability, and bilateral foot disability are not simple medical conditions she is competent to identify; she is not reporting a contemporaneous diagnosis and has not described symptoms that supported a later diagnosis by a medical professional. The Board finds that there is no probative evidence in the record suggesting that hypertension, back disability, and bilateral foot disability is related to service on a direct basis. As discussed earlier the Board does not find the Veteran's statements regarding the onset of her back disability to be credible. As the Veteran's statements regarding the etiology of hypertension and the bilateral foot disability are not competent the issue of credibility on these matters is not reached. Therefore, inasmuch as the evidence weighs against a relationship to service, the record affords no basis to grant service connection on a direct basis for a hypertension disability, a back disability and a bilateral foot disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claim, and the claim must be denied. See 38 U.S.C.A. § 5107(b); see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection on a direct basis for a back disability is denied. Service connection on a direct basis for a bilateral foot disability is denied. Service connection on a direct basis for hypertension is denied. REMAND As discussed above, the Veteran is service connected for PTSD. In December 2009 she contended that she has elevated blood pressure and her back goes out when she experiences anxiety attacks. The Board has considered the Veteran's lay statements and acknowledges that the Veteran is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Further, the Board notes that VA indicated that as to hypertensive vascular disease for prisoners of war there is support in the medical literature for the proposition that veterans with a long term history of PTSD have a high risk of developing cardiovascular disease and myocardial infarction. See 69 Fed. Reg. 60083, Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, Interim Final Rule (Oct. 7, 2004); 70 Fed. Reg. 37040, Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, Affirmation of Interim Final Rule as Final Rule (June 28, 2005). Consequently, the Veteran's assertion that her hypertension is secondary to her service-connected PTSD has a plausible legal basis even if not a POW. As for the bilateral foot disability, medical records dated in 2007 show the Veteran had sore feet since her psychotic episodes in 2005 when she jumped over a fence onto an airport tarmac during an acute psychotic episodes. Records in January 2005 show she had bilateral foot pain and edema after walking many miles for weeks during a psychotic episode. Thus far the back disability, bilateral foot disability, and hypertension have been developed only on a direct service connection theory of entitlement, however the evidence suggests that they may be secondary to her service-connected PTSD. Based on the evidence of record, the secondary service connection theory of entitlement regarding these issues, must be considered and addressed on remand. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (multiple theories constitute the same claim if they "pertain to the same benefit for the same disability"). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance on the claim of entitlement to service connection for a back disability, bilateral foot disability, and hypertension as secondary to a service-connected disability. 2. Schedule the Veteran for a VA examination to determine whether her back disability, bilateral foot disability, and hypertension is secondary to her service-connected PTSD. The examiner must address the following questions: A. Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's back disability, bilateral foot disability, and hypertension is proximately due to, or the result of, her service-connected PTSD? B. Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's back disability, bilateral foot disability, and hypertension is aggravated by her service-connected PTSD? * If it is found that the back disability, bilateral foot disability, and hypertension is aggravated by the service-connected disability, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. * If some of the increase in severity is due to natural progress of the back disability, bilateral foot disability, and hypertension, the examiner should identify the degree of increase in severity due to natural progression. The examiner is asked to consider the following: the Veteran's contentions that when she experiences anxiety attacks her blood pressure goes up and back goes out as well as the medical records which show the Veteran had pain, swelling, and soreness in feet after walking extensively and jumping over a fence onto an airport tarmac during a psychotic episode. The examiner is advised that the Veteran is competent to report her symptoms and history. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 2. Then re-adjudicate the claims of service connection for a back disability, bilateral foot disability, and hypertension as secondary to the service-connected PTSD. If the benefits remaining on appeal are not granted, the Veteran and her representative should be provided with a Supplemental Statement of the Case. They should then be given a reasonable time frame within which to respond. Then, the case should be returned to the Board for further appellate review. The Veteran 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs