Citation Nr: 1322797	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-32 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for a right foot disability. 

2.  Entitlement to service connection for a psychiatric disability. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel







INTRODUCTION

The Veteran served on active duty from April 1986 to August 1986.  Thereafter, she served in the Nebraska Air National Guard (ANG) with multiple, brief periods of active service in 1986, 1987, 1990 and 1991.  She was discharged from the ANG in August 1981 and assigned to the Air Reserve Personnel Center (ARPC), where she remained on inactive status until her discharge in April 1994. 

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision rendered by the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal.  This case was before the Board in May 2011 when it was remanded for additional development.

The record reflects that the Veteran had requested a hearing before a Veterans Law Judge in conjunction with this appeal, and that such a hearing was scheduled for September 2010.  However, the Veteran failed to report for this hearing.  Accordingly, her hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012). 

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The documents in the VVA file are duplicative of the evidence in the paper claims file.


FINDINGS OF FACT

1.  A right foot disability did not have its onset during service or, indeed, until many years thereafter, and is not shown by competent medical, or competent and credible lay, evidence to be related to any in-service injury or disease. 



2.  A psychiatric disability did not have its onset during service or, indeed, until many years thereafter, and is not shown by competent medical, or competent and credible lay, evidence to be related to any in-service injury or disease. 


CONCLUSIONS OF LAW

1.  A right foot disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 101, 3.6, 3.159, 3.303 (2012).

2.  A psychiatric disability was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 101, 3.6, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.


Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')."

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

With respect to the issues decided herein, the record reflects that the Veteran was provided all required notice in a letters mailed in May 2008, prior to the initial adjudication of the claims in August 2008. 

All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs), service personnel records, and post-service medical records has been completed.  Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. 

In this regard, the Board remanded the Veteran's appeal for additional action in May 2011, including to obtain written verification of the Veteran's specific dates of all periods of active duty, ACDUTRA, and inactive duty training, from 1991 to 1994, and to request the Veteran's complete STRs and service personnel records from these periods of service.  To this end, the Appeals Management Center (AMC) verified that the Veteran was discharged from the ANG in August 1981 and then was assigned to the ARPC, where she remained on inactive status until her discharge in April 1994.  After contacting the Nebraska ANG, the National Personnel Records Center, the Record Management Center and the ARPC, the AMC determined that the Veteran's STRs and service personnel records from 1991 to 1994 are unavailable for review.  Given the multiple failed efforts to obtain these records, it is reasonably certain that these records do not exist and that further efforts to obtain those records would be futile.  38 U.S.C.A. § 5103A.  The Veteran was notified that the AMC was unable to obtain these records in an August 2012 Supplemental Statement of the Case.  The AMC also advised the Veteran to submit any service personnel records and STRs that she had in her possession.  See August 2012 letter to the Veteran.  The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required.  D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

Medical opinions were not obtained in conjunction with the Veteran's claims for service connection.  However, the Veteran's STRs do not document complaints or findings of right knee or psychiatric disabilities, and the Veteran has not presented competent medical or competent and credible lay evidence that her currently diagnosed right foot and psychiatric disabilities had their onset in service or are otherwise related to his active service.  Hence, the Board finds, under such circumstances, that VA is not obligated to obtain VA medical opinions for this claim.  See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006) [which held that, under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service (or VA treatment); and the record does not contain sufficient information to make a decision on the claim].  Consequently, the Board finds that VA's duty to assist has also been met in this case.  

Accordingly, the Board concludes that VA has complied with its duties to notify and assist the Veteran.  The Board therefore will address the merits of the claims. 

Legal Criteria - Service Connection

The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991).

ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes."  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  The term INACDUTRA is defined, in part, as duty, other than full- time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). 

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Specifically, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Under 38 C.F.R. § 3.309(a), service connection may be granted on a presumptive basis if manifested within the prescribed time period after service for certain specified diseases; or in the alternative by way of continuity of symptomatology.  With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a), and only these diseases may be service-connected by way of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that continuity of symptomatology is limited to the chronic diseases in 38 C.F.R. § 3.309(a)).  None of the chronic diseases are applicable in this case as there is no evidence that the Veteran's asserted psychiatric disorder is a psychosis, and no evidence of arthritis affecting the foot. 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.

The Veteran contends that she incurred right foot and psychiatric disabilities during service.  

The Veteran's STRs are negative for complaints or findings related to a right foot disability and/or a psychiatric disability.  Of note, February 1986 and February 1990 Reports of Medical Examination show that clinical evaluation of the feet and clinical psychiatric evaluation were normal.  In addition, a February 1990 Report of Medical History notes that the Veteran denied any history of: swollen or painful joints; bone, joint, or other deformity; foot trouble; depression or excessive worry; and nervous trouble of any sort.

May 2005 private treatment records show that the Veteran had been seen for complaints of anxiety and depression since June 2004.  Her physician stated that she had experienced a considerable amount of discord in her last relationship that involved the birth of her first child and abandonment by her fiancé.  This resulted in considerable decline of functioning and change in living.  The diagnosis was history of severe major depressive disorder, single episode, in partial remission; rule out bipolar disorder.

Private treatment records also show that the Veteran was seen in May 2005 for an initial evaluation of bunion deformities.  

The Veteran submitted the instant claim seeking service connection in March 2008.  She reported the onset of her right foot and psychiatric disabilities in 1987 and denied receiving any medical treatment at that time.

Upon review of the evidence, the Board notes that the Veteran's STRs are completely silent as to any right foot or psychiatric disability.  Again, the Board notes that at the time of a February 1990 examination, the Veteran denied having or having had any swollen or painful joints; bone, joint, or other deformity; foot trouble; depression or excessive worry; and nervous trouble of any sort.  Her feet were clinically evaluated as normal.  Clinical psychiatric evaluation was also normal.  In her 2008 claim, she reported receiving no treatment for her claimed disabilities in service.

There are complaints and findings of right foot and psychiatric disabilities after service, but not until 2005 (more than 10 years after discharge).  Moreover, her psychiatric complaints were linked to a post-service break-up with her fiancé. 

The Veteran believes that her claimed disabilities were caused by her active service.  The Board acknowledges these lay assertions; however, the Veteran is not competent to discuss the onset of any claimed disability due to service.  In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. 

Moreover, the lay contentions that the claimed disabilities were manifested in service are outweighed by the lack of findings in the STRs and post-service evidence of record which, as a whole, indicates the Veteran did not report any pertinent complaints until May 2005, which is more than 10 years after her discharge from active duty.  In this regard, the Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Therefore, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible.  Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements.  Hence, the Board concludes that service connection may not be granted for this disability.

In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine does not apply.  See 38 U.S.C.A. § 5107(b).


ORDER

Service connection for a right foot disability is denied. 

Service connection for a psychiatric disability is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs