Citation Nr: 1320128	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  07-13 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a disability manifested by poor blood circulation.

2.  Entitlement to service connection for a disability manifested by high blood pressure.

3.  Entitlement to service connection for depression.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Olson, Counsel


INTRODUCTION

The Veteran had active service from December 1984 to June 1992.

This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in June 2011.  This matter was originally on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, Puerto Rico.

The issues of entitlement to service connection for a disability manifested by high blood pressure and depression 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.


FINDING OF FACT

The Veteran does not have a disability manifested by poor blood circulation that is related to active service.



CONCLUSION OF LAW

The Veteran does not have a disability manifested by poor blood circulation that was incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

Pursuant to the Board's June 2011 Remand, the Appeals Management Center (AMC) afforded the Veteran a VA examination to address the existence and etiology of any disability manifested by poor blood circulation, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's June 2011 Remand.  Stegall v. West, 11 Vet. App. 268 (1998).

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

VA has met all statutory and regulatory notice and duty to assist provisions.  Letters dated in November 2005 and January 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473.  Together, the letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, as well as how VA determines disability ratings and effective dates.  

Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ).  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  

The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file.  

The record also indicates that the appellant has applied for Social Security disability benefits; however, the duty to obtain records only applies to records that are "relevant" to the claim.  38 U.S.C.A. § 5103A(b)(1); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").  The Veteran has not contended that he was pursuing SSA benefits for any of the alleged disabilities on appeal in this case.  In fact, at the November 2011 VA examination, the Veteran reported that he had not worked for the prior four years due to his back condition and noted that he has a pending claim for social security.  There is no indication, then, that the records would be relevant to this claim.  What is "of consequence" in this case is whether the appellant's has a current disability manifested by poor blood circulation related to his military service or service-connected disability, and there is no indication that Social Security records would include any such information.  See also Golz v. Shinseki, 590 F.3d 1317 (2010) (SSA records are relevant if related to the injury claimant is seeking benefits for and there is a reasonable possibility of substantiating claim).  Thus, there is no indication that the SSA records would be relevant to this claim.  Remanding the case to obtain such records would serve no useful purpose.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The Veteran was accorded a VA examination in November 2011.  38 C.F.R. § 3.159(c)(4).  The November 2011 VA examiner addressed the existence of any disability manifested by poor blood circulation in conjunction with a review of the claims file and physical examination of and interview with the Veteran.  The November 2011 VA examination report is thorough; thus this examination is adequate upon which to base a decision. 

With regard to the May 2007 DRO hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the DRO who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. § 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012).  At the May 2007 hearing, the DRO, the Veteran, and the representative for the Veteran outlined the poor blood circulation issue on appeal and engaged in a discussion as to substantiation of the claim.  Overall, the hearing was legally sufficient, and there has been no allegation to the contrary.   Moreover, the Veteran and his representative have not requested another hearing.  In addition, to the extent it can be argued that the hearing was not legally sufficient, by way of the Veteran's personal statements and reports to VA examiners, the Veteran has knowledge of what evidence is necessary to substantiate the service connection issue for poor blood circulation.  Thus, there can be no prejudice.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) 

Service Connection

The Veteran seeks service connection for a disability manifested by poor circulation.  The Veteran testified in May 2007 that he had lost hair from his legs and had swelling and enlargement of the feet due to circulation problems.  In a written statement dated in May 2007, the Veteran noted that he was diagnosed with poor blood circulation around 2003 to 2004.   

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67   (Fed. Cir. 2004). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 113; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  In other words, the evidence must show that the Veteran currently has the disability for which benefits are being claimed.

The record is absent for probative evidence of a disability manifested by poor blood circulation.  The Veteran underwent a VA examination in November 2011 at which time he reported that since 1996, he noticed mild swelling of his legs in the morning which resolved by noon.  The VA examiner determined that the Veteran had never had an arterial or venous vascular disease.  After a review of the claims file, the examiner noted, "NO EVIDENCE OF PERIPHEROVASCULAR DISEASE FOUND ON EXAM, MEDICAL RECORD IN CPRS, NEITHER IN C-FILE THEREFORE NO MEDICAL OPINION PROCEEDS."    

The Board acknowledges the Veteran's assertions of bilateral lower extremity swelling; however, such swelling is actually just reported symptomatology.  Without a recognized injury or disease entity causing a disability, VA is not authorized to award compensation for reported symptomatology.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability.")  Given that, in order to qualify for compensation under 38 U.S.C.A. §§ 1110  and 1131, "the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty," the absence of a nexus was fatal to the claim.  Sanchez-Benitez v. Principi, 259 F.3d 1356, 1360-1361 (Fed. Cir. 2001).

The Board has considered the Veteran's lay statements indicating that he has poor blood circulation.  The Veteran is competent to testify as to his observations.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See 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).  However, unlike disabilities which may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of a disability manifested by poor blood circulation is not readily apparent to lay observation.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, certain disabilities are not capable of lay diagnosis).

In the absence of probative evidence which suggests that the Veteran's bilateral lower extremity swelling constitutes a chronic disability due to disease or injury, the Board has no basis on which to consider such swelling as more than a medical finding or symptom.  

As the preponderance of the evidence is against the above claim, the benefit-of-the-doubt doctrine is not applicable.  38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a disability manifested by poor blood circulation is denied.


REMAND

The Veteran seeks service connection for a disability manifested by high blood pressure.  In a May 2007 statement, the Veteran noted that he started having episodes of high blood pressure in 1991.

At the November 2011 VA examination, the Veteran stated that around 2004 he was told that he had pre-hypertension and that by 2005 he was started on medication.  The VA examiner stated that the Veteran had high blood pressure diagnosed and started on treatment in 2005 and opined that it was her opinion that the Veteran's diagnosis of high blood pressure had not its clinical onset in service or was related to active duty.  The examiner also noted that there was a 50 percent probability or less that a service-connected disability caused or permanently increased the severity of his high blood pressure.  The examiner noted that one single episode of 130/90 in June 1990 did not make a high blood pressure diagnosis; that the Veteran remained with normal blood pressure values until 2005, fifteen years later, when he was diagnosed and started on treatment for high blood pressure; and that the Veteran's service-connected conditions could cause pain and that while in pain, a transitory elevation of blood pressure might appear but that this does not form part of the pathophysiology and mechanism that are present in high blood pressure.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Unfortunately, the November 2011 VA examiner's opinion that there was a 50 percent probability or less that a service-connected disability caused or permanently increased the severity of his high blood pressure is completely inconsistent with the rationale provided.  As such, the Board finds that the claims file must be returned for a more consistent opinion and rationale.

The Veteran also seeks service connection for depression.  

At the VA examination in November 1999, the examiner stated, "Right now what he is showing are some very mild symptoms of depression but this has been basically in response to his being told that he might have multiple sclerosis which is a rather devastating disease to begin with and the Veteran became very anguished about this possibility. ..." A diagnosis of adjustment disorder with depressive features was rendered and the psychosocial stressor noted was the lack of adequate diagnosis in terms of his physical problems.

In March 2007, a VA staff physician noted that the Veteran had been in bad humor and feeling tired due to medical condition.  In May 2007, a VA staff psychiatrist noted that the Veteran's depressive disorder appeared to be linked to and modulated by chronic pain and noted that service connection had been established for myoclonic convulsions.   

The Veteran underwent VA examination in February 2008 at which time the examiner opined that the depressive disorder was not caused by or a result of myofascial pain syndrome.

In December 2011, a VA medical opinion was rendered which stated,

1- The Veteran's current depressive disorder DID NOT HAVE its onset in service.
2- The Veteran's current depressive disorder IS NOT RELATED to the Veteran's military service.
3- The Veteran's current depressive disorder IS NOT RELATED to the service connected conditions ...
4- The depressive disorder HAS NOT undergone an increase in severity due to service-connected disability.
5- There HAVE NOT BEEN an increase in severity of the neuropsychiatric condition.

The examiner noted, that after careful review of C-file and medical records, it was found that there was no evidence of psychiatric complaints, psychiatric findings, or psychiatric treatment during military service or within one year after discharge from military service; that the Veteran sought psychiatric care in 1999, seven years after military discharge; a temporal relationship between the depressive disorder and the service-connected physical conditions was not established; that the Veteran failed to establish a relationship between the depressive disorder and the service-connected conditions in the Mental Disorders C&P evaluation in February 2008; and that there was no objective evidence that the Veteran had pursued further psychiatric care after 2007.

Neither of the VA examiners provided an adequate rationale for their opinions.  As such, it is the Board's opinion that an additional VA examination be conducted to determine whether the Veteran's depressive disorder is related to service or service-connected disability.

Also, the Veteran's VA treatment records on file only date to April 2008, over five years ago.  So if he has since received additional relevant treatment, these records should be obtained.  VA's duty to assist includes obtaining records of relevant VA medical treatment.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).  

Also, the record also indicates that the Veteran has applied for Social Security Administration (SSA) disability benefits for his back condition.  There is no indication they are relevant to the current appeal.  But since the Board is remanding the hypertension and depressive disorder claims for further development, the RO/AMC should attempt to secure any outstanding SSA disability records.  VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  Although disability determinations by the SSA are not controlling on VA, they can be pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records, if relevant.  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. § 3.159(c)(2).  Thus, a remand is warranted to obtain any SSA disability records.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC must contact the Veteran to ascertain where he has had any additional relevant treatment at a VA facility since April 2008 or any relevant private treatment.  Then obtain the records of any relevant medical treatment dated after April 2008, including records from the VA Medical Center (VAMC) in San Juan, Puerto Rico.  All attempts to secure these records, and any response received, must be documented in the claims file.  If no records are available, a response to that effect is required and should be documented in the file.

2.  The RO/AMC must request from the SSA all records associated with the Veteran's disability claim(s).  Request copies of the disability determination and all accompanying medical records.  If no SSA records are available or do not exist, a response to that effect must be documented in the claims file, and the Veteran must be notified. 

3.  After securing any additional SSA, VA treatment, or private records, the Veteran's claims file should be returned to the VA examiner who conducted the November 2011 VA examination, or if unavailable to another appropriate medical specialist, for clarification of the medical opinion provided.  

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent of greater probability) that the Veteran's hypertension was incurred by his active service or caused or permanently aggravated by a service-connected disability.  (The Veteran is service-connected for the following disabilities: migraine headaches; lumbar myositis, discogenic and degenerative joint disease; cervical myositis; myofascial pain syndrome of the right face; right C6-C7 cervical radiculopathy; and right S1 radiculopathy).  

It would be helpful if the examiner would use the following language, as may be appropriate:  "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The examiner should provide a complete rationale for any opinion provided.

4.  After securing any additional SSA, VA treatment, or private records, the Veteran should be afforded an additional VA mental health examination to determine the etiology of his present depressive disorder.  (An actual mental health examination for the Veteran is required).  The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made.  All pertinent symptomatology and findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent of greater probability) that the Veteran has a current mental health disorder (to include major depressive disorder) that was incurred during active service or caused or permanently aggravated by a service-connected disability.  (The Veteran is service-connected for the following disabilities: migraine headaches; lumbar myositis, discogenic and degenerative joint disease; cervical myositis; myofascial pain syndrome of the right face; right C6-C7 cervical radiculopathy; and right S1 radiculopathy).  The examiner should provide a complete rationale for any opinion provided and address the May 2007 assessment by a VA staff physician that the Veteran's depressive disorder appeared to be linked to, and modulated by, chronic pain from his various service-connected disabilities.  

It would be helpful if the examiner would use the following language, as may be appropriate:  "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood).  The term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

5.  The RO/AMC must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

6.  The high blood pressure and depressive disorder issues should be reviewed on the basis of the additional evidence.  If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
PAUL S. RUBIN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs