Citation Nr: 1323246 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-28 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a claimed left hip disorder. 2. Entitlement to service connection for a claimed right hip disorder. 3. Entitlement to service connection for a claimed left wrist disorder. 4. Entitlement to service connection for a claimed right wrist disorder. 5. Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 6. Entitlement to service connection for claimed coronary artery disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from May 1956 to January 1958. The issues on appeal initially came to the Board of Veterans' Appeals (Board) from a February 2008 rating decision issued by the RO. The Veteran requested a hearing with the Board on the July 2010 Substantive Appeal (VA Form 9). Nevertheless, he cancelled that request on the day of the scheduled hearing in April 2013. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). The Veteran submitted additional private medical evidence after certification of his appeal. However, he waived his right to have the RO initially consider this evidence in an April 2013 statement. Therefore, the Board accepts this additional evidence for inclusion in the record and consideration by the Board at this time. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The claim of service connection for right hip disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. There is no probative evidence the Veteran has a current left hip, right wrist, left wrist or innocently acquired psychiatric disorder (to include PTSD or depression) due to an event or incident of his period of active service. 2. Although the Veteran currently suffers coronary artery disease, it is not shown to be due to an event or incident of his period of active service. CONCLUSIONS OF LAW 1. The Veteran does not have current left hip, right wrist, left wrist or innocently acquired psychiatric disability due to a disease or injury that was incurred in or aggravated by his service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The Veteran does not have a disability manifested by PTSD due to disease or injury that was incurred In or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The Veteran's disability manifested by coronary artery disease is not due to disease or injury that was incurred in or aggravated by active service; nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist For the service connection issues being denied, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in August 2007, September 2007, November 2007, December 2007, and March 2010. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate the service connection issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the August 2007 letter from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). With regard to timing, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the February 2008 rating decision on appeal. Thus, there is no timing error. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established as any error was not outcome determinative. See Shinseki v. Sanders, 556 U.S. 396 (2009) (An error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs) dated from 1956 to 1958, service personnel records (SPRs), and private treatment records identified by the Veteran. For his part, the Veteran has submitted personal statements, representative argument, Internet records, and private medical evidence. With regard to the Veteran's Social Security Administration (SSA) records, VA can end its efforts to obtain medical records from a Federal agency, including the SSA, if the VA is informed that the requested records do not exist or further efforts would be futile. 38 C.F.R. § 3.159(c)(2). Here, the VA's request for the Veteran's SSA records was met with a negative response in September 2009, with an indication that the SSA destroyed the medical records. The VA also issued a Formal Finding of Unavailability for these SSA records in March 2010. In addition, in March 2010 notice of the unavailability of the SSA records was provided to the Veteran by the VA in compliance with 38 C.F.R. § 5103A(b)(2) and 38 C.F.R. § 3.159(e)(1). There is no basis for any further pursuit of these SSA records, which are not available. Although the Veteran asserts that he served in the Army Reserve until 1995 and on active duty in the Persian Gulf War in 1991, the service department was not able to confirm any reported period of service. In January 2008, both the Records Management Center (RMC) and the National Personnel Records Center (NPRC) found no records pertaining to periods of service as reported by the Veteran. The Board notes that no VA medical examination has been conducted or medical opinion obtained with respect to the Veteran's service connection claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). However, the standards of McLendon are not met in this case. Specifically, for the alleged left hip, right wrist, left wrist, depression, and PTSD disorders, there is no competent medical evidence of a current diagnosed disability or lay evidence of persistent or recurrent symptoms of a disability. All medical treatment records are negative for any treatment for these alleged disorders. The Veteran has provided no probative or credible lay description of symptoms for these alleged disorders. Further, there is neither medical evidence indicating that any of these alleged current disorders are linked to service, nor any credible evidence of continuity of symptomatology of these disorders since service. McLendon, 20 Vet. App. at 83. For the coronary artery disease, although there is probative evidence of a current heart disability since 1995, there is probative lay account from the Veteran describing in-service manifestations of a heart problem. Therefore, a remand to provide the Veteran with a medical examination is not required for the coronary artery disease. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). With regard to a nexus, the Federal Circuit Court has also stated that "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). The Federal Circuit held that accepting the theory that medical examinations are to be routine and virtually automatically provided to all Veterans in disability cases would eliminate the carefully drafted statutory standards established by Congress governing the provision of medical examinations. Id. Here, the Veteran has provided no probative discussion or reasoning as to why any current left hip, right wrist, left wrist, depression, PTSD, and coronary artery disease disorders are related to service. In summary, the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Service Connection A Veteran is entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to presumptive service connection, some diseases are chronic, per se, such as arteriosclerosis, and therefore will be presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year after service. Even this presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The establishment of service connection for PTSD has unique evidentiary requirements necessitating: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). 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 also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In determining whether service connection is warranted based on in-service incurrence, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection Claims The Veteran asserts that he has current left hip, right wrist, left wrist, coronary artery disease, and innocently acquired psychiatric disorder (to include PTSD and depression) that are related to his active service in the Navy. See August 2007 claim. Upon review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for the claimed left hip, right wrist, left wrist disorders or the currently demonstrated coronary artery disease. In addition, the Board finds that service connection is not warranted for an innocently acquired psychiatric disorder, to include PTSD and depression. The facts in the present case require the Board to address the issue of what constitutes a "disability" under VA law. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Federal Circuit has also noted that two provisions of 38 C.F.R. Part 4, 38 C.F.R. §§ 4.40 and 4.45, refer to pain in connection with the assessment of the extent to which a Veteran may be disabled, and, thus, pain is not wholly irrelevant to the assessment of a disability for which a Veteran seeks compensation. See Sanchez- Benitez v. Principi, 259 F.3d 1356, 1361 (2001). However, the Federal Circuit also noted that, in order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110 or § 1131, the Veteran must prove existence of a disability that has resulted from a disease or injury that occurred in the line of duty. Id. Hence, the mere fact of a Veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement. Rather, an underlying disease or injury is required, with current impairment of some sort. Thus, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). In the present case, since there is no probative evidence of current left hip, right wrist, left wrist, and acquired psychiatric disabilities (to include PTSD and depression), due to disease or injury, service connection cannot be granted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. The medical evidence of record is devoid of any evidence of current left hip, right wrist, left wrist, and acquired psychiatric disabilities. Moreover, the Veteran has not provided any probative lay evidence that would even suggest the existence of a disability (e.g., specific complaints of left hip pain, bilateral wrist pain, or psychiatric signs or symptoms). Although the Veteran as a lay person is competent to report or discuss any symptoms for his alleged disorders, the Veteran has failed to submit any probative lay or medical evidence discussing specific left hip, wrist or psychiatric symptoms or pathology. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09. With regard to PTSD, what is required here is medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV), as well as competent evidence of a nexus between current PTSD symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In the instant case, there is no medical evidence of record diagnosing PTSD in accordance with VA regulation, or for that matter diagnosing any current psychiatric disorder. 38 C.F.R. § 3.304(f). In addition, there is no probative lay evidence or lay description of persistent or recurrent symptoms of PTSD. The Veteran has failed to provide any relevant lay discussion of his alleged current psychiatric symptoms. As mentioned, absent evidence of a current PTSD disability, service connection simply is not possible because there is no present condition to attribute to his alleged in-service stressors to include the plane crash, even if the Board were to assume for the sake of argument that the in-service stressors alleged did actually occur. With regard to coronary artery disease, as noted, the first - and perhaps most fundamental requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. In this regard, the private treatment records dated from 2005 to 2007 document a diagnosis of coronary artery disease and heart bypass surgeries dating back to 1995. Consequently, it is undisputed the Veteran has a current coronary artery disease disability. However, the STRs dated from 1956 to 1958 are negative for coronary artery disease or any other heart complaints, treatment, or diagnoses. To the extent that he Veteran asserts having active duty in the Persian Gulf in 1991, but he has not provided any verification for such a period of service, and the service department was not able to verify the Veteran ever served in the Persian Gulf. Moreover, the Veteran himself failed to offer any specific lay discussion as to how his coronary artery disease began during any alleged period of service or how it was incurred during service due to injury or disease. The Board has a duty to determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Post-service, there is also no clinical evidence of coronary artery disease within one year after the Veteran's separation from service. Therefore, the presumption of in-service incurrence is not for application. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Accordingly, the preponderance of the evidence is against the claims of service connection for left hip, right wrist, left wrist, coronary artery disease, and acquired psychiatric disorders (to include PTSD and depression), so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a claimed left hip disorder is denied. Service connection for a claimed left wrist disorder is denied. Service connection for a claimed right wrist disorder is denied. Service connection for a claimed innocently acquired psychiatric disorder, to include PTSD and depression is denied. Service connection for coronary artery disease is denied. REMAND Before addressing the merits of the service connection claim for a right hip disorder, the Board finds that additional development of the evidence is required. First, the Veteran alleges that he was awarded a Bronze Star Medal due to his alleged heroics during a plane crash in 1957 at the U.S. Naval Station in Los Alamitos, Long Beach, California. He reports injuring his right hip during this incident. The service department found no evidence of any awards or medals for the Veteran, but he stated that he has confirmation of his Bronze Star Medal and other awards. See Veteran's August 2007 statement; February 2009 stressor statements. The RO must request that the Veteran provide any written corroboration that he received a Bronze Star Medal or any other additional awards or ribbons during his Navy service from 1956 to 1958. The RO/AMC must also request that the Veteran indicate when and where he was treated or hospitalized for a right hip injury during the alleged in-service plane crash in 1957. Second, the RO must contact the U.S. Army Joint Services and Research Center (JSRRC) or other appropriate custodian and provide a description of the alleged 1957 plane crash in order to attempt to verify the incident. The Veteran alleges that he was involved in a plane crash of a P2V-7F Neptune sometime between April and June of 1957 at the U.S. Naval Station in Los Alamitos, Long Beach, California. At that time, the Veteran was assigned to the Naval Reserve Aviation VP Squadron 776. See February 2009 stressor statement. The SPRs confirm that this particular unit was assigned to the U.S. Naval Station in Los Alamitos in the 1950s. Thus, the RO must provide the JSRRC or other appropriate custodian with the Veteran's Vietnam service dates, unit identification, and the approximate date and location of the alleged plane crash incident noted above. The RO must ask JSRRC to provide unit records, morning reports, or any additional information which would verify the alleged plane crash. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to request that he provide any written corroboration that he received a Bronze Star Medal or any other additional awards or ribbons during his Navy service from 1956 to 1958. The RO must also request that the Veteran indicate when and where he was treated or hospitalized for a right hip injury during the alleged in-service plane crash in 1957. 2. The RO then must contact the JSRRC or other appropriate custodian and provide a description of the alleged 1957 plane crash in order to attempt to verify the incident. The Veteran alleges that he was involved in a plane crash of a P2V-7F Neptune sometime between April and June of 1957 at the U.S. Naval Station in Los Alamitos, Long Beach, California. At the time he was assigned to the Naval Reserve Aviation VP Squadron 776. See February 2009 stressor statement. SPRs confirm that this particular unit was assigned to the U.S. Naval Station in Los Alamitos in the mid-1950s. After providing the JSRRC or other appropriate custodian with a description of the alleged plane crash incident above, the RO must request the JSRRC or other appropriate custodian to provide unit records, morning reports, or any additional information which would verify the alleged plane crash. 3. The RO 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing all indicated development to the extent possible, the RO should readjudicate the right hip claim remaining on appeal, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and his representative and they should be afforded a reasonable opportunity for response. (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs