Citation Nr: 1322133 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-11 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with depressed mood (claimed as posttraumatic stress disorder (PTSD)). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for a skin disability (claimed as a skin rash), to include as due to exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to August 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2007 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO's) in Columbia, South Carolina, and Montgomery, Alabama, respectively. Original jurisdiction of the Veteran's claims resides in the Montgomery VARO. It appears that the Veteran's March 2009 substantive appeal concerning his skin and acquired psychiatric disability claims was untimely. However, since the RO accepted this filing and continued development and adjudication of the claims, the Board will not disturb this determination. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In May 2013, the Veteran did not report for the hearing he had requested before a Veterans' Law Judge. No good cause has been shown and no request to reschedule the hearing has been made. Therefore, the Board finds that adjudication of the current appeal may go forward without scheduling the Veteran for another hearing. 38 C.F.R. § 20.704(d) (2012). Characterization of an issue on appeal In March 2007, the Veteran filed a claim to establish service connection for PTSD. As will be discussed below, there is no valid PTSD diagnosis of record. However, the Veteran has been diagnosed with adjustment disorder with depressed mood. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of above, the Board has expanded and recharacterized the Veteran's claim as stated on the title page. The issues of entitlement to service connection for hepatitis C and entitlement to service connection for a skin disability, to include as due to exposure to herbicides, 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 evidence of record does not relate the Veteran's currently diagnosed acquired psychiatric disability, adjustment disorder with depressed mood, to his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A May 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The Board notes that the Veteran has not been notified of this liberalizing amendment. However, as will be further discussed below, since the record reflects service in the Republic of Vietnam, the Veteran's in-service stressor has been deemed corroborated. As such, remanding the Veteran's claim so that he may be provided a pristine notice letter pertaining to a service-connected element which has already been demonstrated would serve no useful purpose. The United States Court of Appeals for Veterans Claims (the Court) has held that such remands are to be avoided. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). The Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. The Veteran's service treatment records and VA medical treatment records have been obtained. There is no indication of outstanding, pertinent private treatment records, and the record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). A VA examination in connection with the Veteran's acquired psychiatric disability claim was conducted in August 2011, and the report of this examination reflects that it is adequate for the purposes of adjudicating the Veteran's claim. Specifically, the examination report reflects that a diagnosis and opinion which are congruent with the other evidence of record were rendered following a physical examination of and interview with the Veteran and a review of the record. All offered opinions are accompanied by a complete rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Concerning element (1), evidence of a current disability, the Board observes that, while the Veteran initially asserted a claim for PTSD, the evidence of record does not indicate that PTSD has been diagnosed in accordance with the pertinent criteria, namely that detailed in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV). Specifically, for a diagnosis of PTSD to be made, the person in question must A) be exposed to a traumatic event, B) persistently reexperience that event, C) persistently avoid stimuli associated with the event, and D) experience persistent symptoms of increased arousal not present before the event. See id. A May 2008 VA treatment record reflects a positive PTSD screening; however, the August 2011 VA examiner opined that the Veteran's psychiatric symptomatology was more likely than not attributable to a diagnosis of adjustment disorder with depressed mood. This opinion was based on the Veteran's statement that, while he participated in combat in the Republic of Vietnam, those experiences "really didn't bother him, [and] he wasn't afraid because he was young." Nonetheless, since the Veteran was diagnosed with an acquired psychiatric disability on Axis I, adjustment disorder with depressed mood, element (1) has been demonstrated. Concerning element (2), evidence of an in-service disease or injury, the Veteran reported participating in combat while serving in the Republic of Vietnam, and, more specifically, he stated that he saw people "blown up" during a mortar attack which took place in close proximity to the truck he was driving. The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD varies depending on whether or not the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). As noted above, the Veteran served in the Republic of Vietnam during his active duty. If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, that veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (d), (f); see also Doran v. Brown, 6 Vet. App. 283, 289 (1994). In light of above, the Veteran's In light of above, the Veteran's statements as to incidents in service are competent evidence that they occurred. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 U.S.C.A. § 1154 (b) (2012). Element (2) has been demonstrated. Concerning element (3), evidence of a nexus between the current disability and the in-service disease or injury, the August 2011 VA examiner opined that the Veteran's currently-diagnosed acquired psychiatric disability, adjustment disorder with depressed mood, is less likely as not related to his service, to include his reported stressor events, but was more likely than not related to "problems with his job security," as he was recently fired from a company after 18 years of service. As noted above, the examiner noted that Veteran's history of in-service combat in the Republic of Vietnam; however, based on the Veteran's statements, it was opined by the examiner that these stressor events were unrelated to his current psychiatric symptomatology. In the present case, the only nexus evidence of record which is favorable to the Veteran's claim comes from the Veteran. The Board acknowledges that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Here, the Veteran has asserted that his current acquired psychiatric disability, adjustment disorder with depressed mood, is related to his service, to include his reported stressor events. However, unlike the varicose veins in Barr or dislocated shoulder in Jandreau, a the Veteran's acquired psychiatric disability is not a condition that can be causally-related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. Thus, the Board concludes that, although the Veteran is competent to report symptoms, his statements as to the origin of his acquired psychiatric disability do not constitute competent evidence. Furthermore, the Board finds that the August 2011 VA examiner's opinions concerning etiology of the Veteran's acquired psychiatric disability are more persuasive than the Veteran's statements. The VA examiner conducted an examination of the Veteran, interviewed the Veteran, reviewed the entire claims file and medical history of the Veteran, and provided nexus opinions with a supporting rationale. Thus, the Board finds that the VA examiner's opinions are more persuasive than the statements of the Veteran with respect to the etiology of the Veteran's acquired psychiatric disability. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the present case, the Board notes that the only psychiatric disabilities listed among the disorders determined by VA to be "chronic" in 38 C.F.R. § 3.309(a), are psychoses. However, the Veteran's diagnosed acquired psychiatric disability, adjustment disorder with depressed mood, is not listed among the psychiatric disorders noted by VA as psychoses. 38 C.F.R. § 3.384. Accordingly, the provisions of 38 C.F.R. § 3.303(b) pertaining to chronicity and continuity of symptomatology are not for application in the present case. See Walker, supra. In addition, there is no evidence of any frequent and persistent psychiatric symptoms since the Veteran's service. Indeed, as noted by the August 2011 VA examiner, the record reflects that the Veteran's complaints of psychiatric symptomatology coincide with his March 2007 claim and his dismissal from employment. In sum, the evidence does not indicate complaints of or treatment for psychiatric symptoms for more than 37 years after his service separation. This gap in time also weighs against a finding of frequent and persistent symptoms. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Thus, entitlement to service connection for an acquired psychiatric disability based on frequent and persistent symptoms must be denied. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In light of the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disability. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for and acquired psychiatric disability is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). ORDER Entitlement to service connection for an acquired psychiatric disability, to include adjustment disorder with depressed mood, is denied. REMAND After a review of the record, the Board concludes that the Veteran's skin disability and hepatitis C claims must be remanded in order to allow VA to fulfill its duty to assist the Veteran in substantiating his claims. The Veteran's service treatment records reflect that, during his service, he experienced several risk factors for hepatitis C, to include surgical treatment, exposure to other people's blood in combat, and multiple sexual partners. Also, his service treatment records complaints of and treatment for a rash on his right foot in June 1969 and July 1969. Moreover, since his served in the Republic of Vietnam, exposure to herbicides is conceded. The Veteran's post-service VA outpatient treatment records reflect complaints of and treatment for a chronic rash in his rectal area as well as a diagnosis of hepatitis C. In light of the evidence of in-service exposures and symptomatology as well as post-service medical evidence of a skin disability and a diagnosis of hepatitis C during the appeal, the Board concludes that the Veteran should be provided a VA examination to determine the nature and etiology of these claimed disabilities. This is especially important considering that the Veteran has not previously been provided a VA examination in conjunction with these claims. McLendon v. Nicholson, 20 Vet. App. at 83. Further, since these claims must be remanded for other matters, the Board finds that the RO/AMC should obtain updated VA treatment records. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of VA treatment records from the VA Medical Center in Montgomery, Alabama and any associated outpatient clinic including the VA Outpatient Clinic in Dothan, Alabama dated from September 2011 to the present.. Document all attempts to secure this evidence in the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, notify the Veteran and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 2. Thereafter, schedule the Veteran for an examination to determine the current nature and etiology of his hepatitis C and any identified skin disability. The complete record, to include a copy of this remand, must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished, to include laboratory testing. Based on a review of the complete record and the results of his physical examination and any completed testing, the examiner is asked address the following: a. Identify any skin disability which has been present during the appeal period (since March 2007). b. For each disability identified in part (a), provide an opinion as to whether the disability is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service, to include herbicide exposure. c. Confirm a diagnosis of hepatitis C during the pendency of the appeal (since July 2009). d. If a diagnosis of hepatitis C during the appeal period is confirmed, opine whether such is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service, to include his in-service risk factors (in-service surgical treatment, exposure to other people's blood in combat, and multiple sexual partners). 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs