Citation Nr: 1320790 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 03-33 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for carpal tunnel syndrome. 3. Entitlement to service connection for left hand numbness, to include as secondary to medications taken for paranoid schizophrenia. 4. Entitlement to service connection for a right heel disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for speech difficulty, to include as secondary to medications taken for paranoid schizophrenia. 8. Entitlement to service connection for an acquired psychiatric disorder. 9. Entitlement to service connection for hypertension, to include as secondary to medications taken for paranoid schizophrenia. 10. Entitlement to service connection for lower lip numbness, to include as secondary to medications taken for paranoid schizophrenia. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1974 to January 1976. This appeal arose before the Board of Veterans' Appeals (Board) from October 2002 and September 2004 rating decisions of the Waco, Texas, Department of Veterans Affairs (VA), Regional Office (RO). The October 2002 decision had denied entitlement to service connection for the above-noted disorders. The September 2004 decision found that no new and material evidence had been submitted to warrant reopening the claims of entitlement to service connection for a psychiatric disorder, diagnosed as paranoid schizophrenia, and for a low back disability. As to the psychiatric claim, the Board notes that following the June 2001 refusal to reopen the claim, the RO obtained and associated the Veteran's service personnel records with the claims folder. According to 38 C.F.R. § 3.156(c) (2012), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim on a de novo basis, without regard to finality. Since relevant service personnel records were associated with the claim after the last final denial, the Board will reconsider this claim on a de novo basis, in accordance with 38 C.F.R. § 3.156(c); the issue has been re-characterized on the tile page to conform with this review. The Veteran had testified before a Decision Review Office (DRO) at the RO in March 2005. A transcript of this hearing has been associated with the claims folder. In January 2011, the Board remanded this case for evidentiary development. A review of the claims folder reveals that the remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (which states that "[A] remand by....the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."). Therefore, the Board may proceed with the adjudication of the Veteran's claims. It is noted that the Board must make its own determination as to whether new and material evidence has been received to reopen a claim, regardless of any determination made by the RO. See Barnett v. Brown, 8 Vet. App. 1 (1995); aff'd Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of entitlement to service connection for, a low back disability, hypertension, lower lip numbness, and an acquired psychiatric disorder, diagnosed as paranoid schizophrenia are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The RO denied entitlement to service connection for a low back disability in a June 1976 rating action; the Veteran did not appeal this denial. 2. Evidence received since the June 1976 RO rating decision raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 3. The Veteran does not have carpal tunnel syndrome that can be related to his period of service. 4. The Veteran does not have left hand numbness that can be related to his period of service. 5. The Veteran does not have a right heel disability that can be related to his period of service. 6. The Veteran does not have a right knee disorder that can be related to his period of service. 9. The Veteran does not have a left knee disorder that can be related to his period of service. 10. The Veteran does not have a diagnosed speech disorder that can be related to his period of service. CONCLUSIONS OF LAW 1. The June 1976 rating action, which denied service connection for a low back disability is final. 38 C.F.R. § 3.104 (1976). 2. New and material evidence has been received to warrant reopening the previously and finally denied claim of entitlement to service connection for a low back disorder, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Carpal tunnel syndrome was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). 4. Left hand numbness was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). 5. A right heel disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). 6. A right knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). 7. A left knee disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). 8. A speech disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002; Supp. 2012); 38 C.F.R. § 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is reopening the back claim, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. As to the remaining service connection claims, the notice requirements were met in this case by letters sent to the Veteran in June 2002, April and October 2004, November 2005, January 2011, and July 2012. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). 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). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. 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 case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was not afforded VA examinations as to the denied claims. However, as there is no evidence that any of these conditions were present in service, or that they are currently present, a VA examination is not needed in order to decide these claims. See 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012). New and material claim regulations In June 1976, the RO denied service connection for a low back disability. The Veteran had been notified of these decisions in letters from the RO, and did not appeal. Thus, the rating decision became final. 38 U.S.C.A. §§ 5108, 7105(b), (c) (West 2002). When a claim has been disallowed by the RO, "the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered" unless new and material evidence has been presented. 38 U.S.C. §§ 5108 and 7105(c); 38 C.F.R. §§ 3.156(a) (2012). 38 C.F.R. § 3.156(a) (2012) states: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit stressed that newly submitted evidence could be material if it resulted in a more complete record for evaluating the disability. With respect to any application to reopen a finally decided claim, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Factual background and analysis The evidence of record at time of the June 1976 denial of service connection for the Veteran's low back disability included his service treatment records and the report of a May 1976 VA examination. The service treatment records had shown that he had been seen on one occasion, on December 26, 1975, for constant low back pain that had begun a few hours before. The impression was muscle spasm. His separation examination was normal. The May 1976 VA examiner noted the Veteran's complaints of intermittent back pain and occasions when it was difficult for him to bend over. The objective examination was within normal limits. The examiner stated that there was no clinical basis for his back complaints. The evidence submitted after the 1976 denial included numerous VA outpatient treatment records, a November 1998 VA examination report (which had noted the onset of low back pain two to three years before the examination), and the Veteran's testimony before a Decision Review Officer in March 2005. These records indicate that the Veteran has been diagnosed with degenerative joint disease of the low back, which he attributed to striking his back on hatchways aboard the USS Independence. During his hearing testimony he also stated that he engaged in a very heavy lifting while in service (he had to carry mail bags), and that he also had to squat under plane wings to lift chains and chucks. He attributed his current back complaints to these activities. The additional evidence is both new and material, in that it now indicates the presence of a diagnosed low back disorder, namely degenerative joint disease, and provides more information concerning the possible in-service injuries to the back. These are facts necessary to substantiate his claim for service connection. Thus, this new evidence raises a reasonable possibility of substantiating the claim. New and material evidence has therefore been received and the claim is reopened. Service connection claims Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Factual background and analysis The claims for service connection for carpal tunnel syndrome, left hand numbness, a right heel disability, bilateral knee disabilities, and a speech disorder will be addressed together since the decision concerning these claims rests on the same legal analysis. The Veteran has claimed that he suffers from numerous disorders and that they all first began in-service. His service treatment records, however, are silent to any complaints of, treatment for, or diagnoses of carpal tunnel syndrome, left hand numbness, a right heel disorder, bilateral knee disorders, or a speech disorder. His January 1976 separation examination makes no reference to any of these complaints. The Veteran has submitted voluminous VA treatment records dated from the late 1970's to 2006. None of these records makes any reference to any of these claimed disorders. The only reference to his speech was mutism that was related to his psychiatric disorder. There was no indication that an underlying speech disability was ever diagnosed. In fact, during psychiatric treatment in 2002, the Veteran was noted to have normal speech and he was able to converse well in group therapy. After a careful review of the evidence of record, entitlement to service connection is not warranted for the following: carpal tunnel syndrome, left hand numbness, a right heel disability, bilateral knee disabilities, and a speech disorder. Since there are no confirmed diagnoses, the Board cannot conclude that these disorders are currently present. Because entitlement to service connection requires the presence of a current disability, the Board finds that service connection for these disorders has not been established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). The Board has noted that the Veteran has also argued that he has left hand numbness and a speech disorder because of the medications that he takes for his diagnosed paranoid schizophrenia. However, while the psychiatric claim is being remanded for additional development, the outcome of such a remand would have no effect on the decision concerning these two claims. This is because neither left hand numbness nor a speech disability has ever been diagnosed. In other words, even if service connection for the Veteran's psychiatric disorder were to be awarded, there is no left hand numbness or speech disorder currently present that could be related to that psychiatric disorder. Significantly, the only evidence of record supporting a finding that the Veteran currently has carpal tunnel syndrome, left hand numbness, a right heel disability, bilateral knee disabilities, or a speech disorder is found in assertions from the Veteran. The Board points out that, although a lay person is competent to testify as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific opinions involved in this case, [that is, whether carpal tunnel syndrome, left hand numbness, a right heel disability, bilateral knee disabilities, or a speech disorder currently exist or have been diagnosed] fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received; the claim for service connection for a low back disability is reopened. To this extent, the appeal is granted. Entitlement to service connection for carpal tunnel syndrome is denied. Entitlement to service connection for left hand numbness is denied. Entitlement to service connection for a right heel disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a speech disorder is denied. REMAND The Veteran has claimed entitlement to service connection for an acquired psychiatric disorder, diagnosed as paranoid schizophrenia. His service treatment records note that his entrance examination was within normal limits. When he was admitted for an appendectomy in December 1975, he displayed unusual behavior. He talked sparingly, and was hostile and uncooperative. His service personnel records noted that he had problems with his appearance and with getting along with his shipmates. He also displayed difficulties with completing tasks and had a need for constant monitoring. His separation examination, conducted in January 1976 made no mention of any psychiatric complaints or symptoms. The objective examination was normal. After his release from service, the Veteran was examined by VA for an unrelated claim in May 1976. The neurological and psychological portion of the examination form was marked "N," for normal. His first admission for psychiatric complaints occurred between July and September 1978, at which time he was diagnosed with schizophrenia. The claims folder is replete with records after this date containing diagnoses of paranoid schizophrenia. The Veteran's siblings submitted statements in March 2005. These all indicate that he had been completely normal prior to service. After his return from service, they all immediately noted a change in his behavior. They said that he would roam around town and would dye his face and hair strange colors. He spoke of things that made no sense, often referring to demons. One sister, R.P., stated that he had called home once while in service, noting that he had been beaten and treated cruelly by officers. They all attested that the change post-service had been tremendous and devastating, particularly for their now-deceased parents, who would often find him when he was living on the streets and would try to get him help. The Board notes that the Veteran has never been provided a complete VA psychiatric examination. This is essential in this case, particularly in light of the service treatment and personnel records which show some peculiarities in his behavior during service. Additionally, the lay statements submitted by his family suggest that his psychiatric symptoms may have been present within the one year period following his separation. This is particularly important since the Veteran has been diagnosed with a psychosis, a chronic condition under 38 C.F.R. § 3.309(a). Continuity of symptomatology during the one year period after separation for those conditions listed as chronic under 38 C.F.R. § 3.309(a) is an alternate route to establishing service connection (of direct incurrence cannot be found). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has also alleged that he suffers from hypertension and lower lip numbness as a result of the medications he takes for his paranoid schizophrenia. He seeks to establish service connection for these disorders as secondary to the diagnosed paranoid schizophrenia. Hypertension is diagnosed and the Veteran is being treated for it. There are also records that reflect complaints of intermittent numbness of the lower lip diagnosed as paresthesia. Neither of these conditions was noted in the service treatment records. However, the Board finds that a determination as to whether these conditions are related to the schizophrenia medications would be premature and must await the outcome of remand below. As such, a decision concerning these conditions must be deferred, since their resolution is intertwined with the resolution of the psychiatric claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As to the Veteran's claim for service connection for a low back disorder, it is noted that the Veteran had experienced back pain in service that was diagnosed as muscle spasms. Following service, he noted that he had repeatedly injured his back in service on hatchways and while engaging in heavy lifting. These activities had resulted in constant back pain that has persisted since service. The record indicates that the Veteran has been diagnosed with degenerative joint disease (DJD). However, no examination since this diagnosis has been conducted; thus, it is unclear whether this currently diagnosed disorder is related to the back pain and spasms noted in service. Such an examination is deemed necessary in order to fully assist the Veteran and to fairly adjudicate the merits of his claim. See 38 C.F.R. § 3.159(c)(4) (2012). Finally, it is noted that the last treatment records in the file date from December 2006. The RO must ascertain whether there are additional VA or private treatment records available that should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide the names and addresses of all VA and non-VA health-care providers from whom he has sought treatment since December 2006. For all private physicians, the Veteran must provide an appropriate signed release form allowing VA access to his medical records. VA should make appropriate attempts to obtain any outstanding records of pertinent treatment. All efforts to obtain any identified records must be associated with the claims folder. For any VA records, all efforts to locate the records must continue until it is determined that the records are not available or that any further efforts to obtain them would be futile. For all records that cannot be located, the RO must prepare a formal Memorandum of Unavailability. 2. Schedule the Veteran for a complete VA psychiatric examination. After reviewing all the evidence of record, to include the service treatment and personnel records, and any records obtained in conjunction with this remand (which must be documented in the examination report), the examiner must render an opinion as to whether it is at least as likely as not (that is, at least a 50-50 degree of probability) that the Veteran's diagnosed psychiatric disorder either was incurred in or aggravated by service, or whether it is at least as likely as not that a psychiatric disorder had manifested to a compensable degree within one year of his separation from service (as referred to in the lay statements provided by his family). The examiner must also render an opinion as to whether it is at least as likely as not (that is, at least a 50-50 degree of probability) that any diagnosed psychiatric disorder, or the medications taken for its treatment, has caused or aggravated his diagnosed hypertension and lower lip numbness. A complete rationale for all opinions expressed must be provided. If an opinion cannot be made without the resort to mere speculation, such must also be fully explained by the examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a complete VA orthopedic examination. After a complete review of the record, to include the Veteran's service treatment records, and the March 2005 DRO hearing testimony (which must be documented in the examination report), the examiner must render an opinion as to whether it is at least as likely as not (that it, to a 50-50 degree of probability) that the Veteran's currently diagnosed DJD of the low back is etiologically related to any incident of service, to include the various injuries reported by the Veteran, or whether the DJD manifested to a compensable degree within one year of his separation from service. A complete rationale for any opinion expressed must be provided. If an opinion cannot be made without the resort to mere speculation, this must also be fully explained by the examiner. See Jones, supra. 4. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. Once the above-requested development has been completed, the RO must readjudicate the Veteran's claims for service connection for an acquired psychiatric disorder, diagnosed as paranoid schizophrenia, a low back disorder (diagnosed as DJD), hypertension, and lower lip numbness. If any part of the decision remains adverse to the Veteran, he and his representative must be provided with an appropriate Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs