Citation Nr: 1323390 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 12-17 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to service connection for a renal disability, characterized as residuals of bilateral renal calculi and right ureteral calculus. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right hip disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that 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). The Veteran had active service from September 1954 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran seeks service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of diagnoses of PTSD and major depressive disorder, the issue has been recharacterized as reflected on the title page, which will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Veteran testified before a decision review officer at the RO in April 2012. He requested and was scheduled for a hearing before a Veterans Law Judge (VLJ) at the Board's officer in Washington, DC in June 2013, but failed without explanation to appear for that hearing. Therefore, his hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704(e). The issues of entitlement to service connection for an acquired psychiatric disorder and a right hip disability 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. FINDINGS OF FACT 1. No disability of the kidneys or urethra was manifest in service and the current claimed bilateral renal calculi and right ureteral calculus are unrelated to service. 2. In April 2003, the RO denied service connection for a right hip disability. 3. The evidence received since the April 2003 decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right hip disability. CONCLUSIONS OF LAW 1. A renal disability, to include bilateral renal calculi and right ureteral calculus, was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The April 2003 rating decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2012). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a right hip disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). These requirements apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. As a preliminary matter, the Board has determined that the evidence is sufficient to reopen the Veteran's claim of entitlement to service connection for right hip disability; accordingly, no further discussion of the VCAA is necessary with respect to this claim. With respect to the claim for service connection for a renal disability, the Board notes that a letter dated in April 2012 discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was told that VA would assist him in obtaining additional relevant evidence. He was invited to identify or submit evidence supportive of his claim. He was advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the above notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Moreover, although the notice letter was sent subsequent to the initial adjudication of the Veteran's claim, the Board finds that there was no prejudice as the claim was readjudicated in a May 2012 statement of the case (SOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental SOC, is sufficient to cure a timing defect). With respect to VA's duty to assist, the Board notes that, to the extent possible, identified treatment records have been associated with the claims file. The Board notes that only limited service treatment records for the Veteran's Army service are available. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the RO has notified the Veteran of the unavailable records and asked him to submit additional information which might be used to conduct a further search for records. The analysis below has been undertaken with VA's heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to the claim for a renal disability. However, the Board finds that a VA examination is not necessary in order to render a decision. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. Available service treatment records are devoid of any complaints suggesting the claimed disability. The Board also finds that there is otherwise no credible evidence of any in-service disease or injury, or credible evidence of a continuity of symptomatology since service, and no competent evidence otherwise showing that the claimed disability was incurred in service. Accordingly, a VA examination is not warranted. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection for Renal Disability Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). However, the Federal Circuit has recently held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 798 F.3d 1331, (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran contends that he sustained injuries in service when he was attacked by a group of German nationals in the fall of 1955. He has stated that he was hospitalized in a Heidelberg military hospital for a long period. He asserts that his kidneys were damaged as the result of the alleged attack, and that his subsequent renal diagnoses are related to the alleged in-service attack. Available service treatment records consist only of the report of the Veteran's separation physical examination. At that time, no diagnosis, complaint, or abnormal finding pertaining to the Veteran's renal functioning was recorded. Morning report obtained by VA from the service department show that the Veteran was unavailable for duty for two days in December 1955. Post-service VA treatment records indicate that the Veteran was hospitalized in in August and September 1976. The history elicited during that hospitalization indicate that the Veteran's history of bilateral renal calculi with multiple stones dated to 1960. The author of the discharge summary noted that the Veteran had undergone two left ureteral lithotomies, in July 1973 and October 1974. The author also noted that the Veteran had presented to Duke University Medical Center for workup in July 1976. A July 1977 VA hospitalization report indicates a similar history, with the Veteran reporting a long history of renal calculi beginning in the early 1960s with multiple spontaneous passages. More recent VA treatment records include nephrolithiasis and ureteral calculi in the problem list. In a September 2007 statement, a friend of the Veteran's indicated that he could confirm that the Veteran had been in a military hospital in Heidelberg for more than five months. He noted that he had served at the same hospital. In September 2008, the Veteran stated that he had very slow kidney function and that he had stones. He asserted that the problem had been diagnosed during service. In December 2010, the RO verified the service of the individual who had written the September 2007 statement. It noted that the author of that statement had served during a different period than the Veteran, from 1965 until 1967, and from 1969 to 1971. In December 2011, the Veteran stated that he had met the author of the September 2007 statement once and compared the fact that they were once at the Heidelberg hospital. He acknowledged that his friend's service was more than 10 years after he was hospitalized. Having carefully reviewed the record, the Board concludes that service connection is not warranted for a renal disability. In this case, the Board notes that there is a remarkable lack of credible evidence of pathology or treatment in proximity to service or within years of his 1956 separation. The earliest post-service treatment for any complaints referable to the Veteran's renal functioning dates to 1976. At that time, the Veteran relayed a relevant history dating to the 1960s. Notably, this history reported in the context of obtaining treatment is in conflict with the Veteran's current report that his claimed renal disability was diagnosed in service. The Board finds statements as to history made directly to health care providers during the course of treatment to be inherently more credible than statements made in support of a claim for benefits. In short, the most credible evidence regarding the most likely date of onset of the claimed renal disability consists of treatment records reflecting onset of symptomatology years after service discharge. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has argued to VA that he has experienced symptoms related to his renal functioning since service. However as discussed in detail above, the Board finds that his statements to the contrary, in the pursuit of treatment years following his separation from service, prove that his current statements as to onset are unreliable. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains diagnoses related to the Veteran's renal functioning, it does not contain reliable evidence which relates this claimed disability to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent credible lay or medical evidence relating this claimed disability to service, the Board concludes that the claims of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2012). New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 be neither 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. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In this case, service connection for a right hip disability was denied in April 2003. The RO specified that service connection was denied because the medical evidence of record failed to show that the claimed disability had been clinically diagnosed, and because there was no evidence of trauma in service. At the time of the April 2003 rating decision, the evidence included available service treatment records which consisted only of the report of the Veteran's separation physical examination. It reflected normal lower extremities. VA treatment records associated with the record at the time of the April 2003 rating decision do not reflect any diagnosis, complaint, or abnormal finding pertaining to the Veteran's right hip. In September 2008, the RO declined to reopen the Veteran's claim. It indicated that the April 2003 rating decision had denied the claim because there was no evidence of service incurrence. The evidence added to the record since the April 2003 rating decision includes VA treatment records indicating that the Veteran underwent right total hip replacement in November 2000. Since the April 2003 rating decision, evidence added to the record includes that showing a current right hip disability. As such, the Board finds that a defect existing at the time of the April 2003 rating decision is cured, and the claim maybe reopened. The reopened claim will be addressed in the REMAND which follows. ORDER Entitlement to service connection for a renal disability is denied. New and material evidence having been submitted, the petition to reopen the claim of entitlement to service connection for a right hip disability is granted. REMAND Right Hip As discussed above, the RO in its September 2008 rating decision declined to reopen the Veteran's claim of entitlement to a right hip disability; however, the Board herein has reopened that claim. Because the RO did not reopen the claim and consider it on a direct basis, the Board may not consider the claims on the merits unless the Veteran has waived RO consideration or the Veteran would not be prejudiced by such consideration. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that generally the Board should return a reopened claim to the RO for initial consideration, but may consider the merits of the claim where the Veteran submits a waiver or would not be prejudiced by such adjudication); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of RO consideration of the merits of a claim). Here, the Veteran has not waived RO consideration. Moreover, in light of the expanded record, the Board is unable to conclude that the Veteran would not be prejudiced by such consideration. Accordingly, remand is required for RO consideration of the reopened issue. Acquired Psychiatric Disorder The Veteran alleges that he was attacked by a group of German nationals during service, and that such is the basis for his claimed PTSD. If a claim for PTSD is based on an in-service personal assault, 38 C.F.R. § 3.304(f)(5) provides that evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. In this case, the Veteran has not been apprised of the alternative forms of evidence he might submit in support of this claim. Accordingly, remand is required to accomplish appropriate notice to the Veteran. In light of the above discussion, the Board has concluded that additional development and action are required. Accordingly, the case is REMANDED for the following: (Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran an appropriate stressor development letter. The Veteran should be notified that in-service personal assault may be corroborated by evidence from sources other than the service records, as defined in 38 C.F.R. § 3.304(f)(3). All specific examples of alternative sources of evidence listed in 38 C.F.R. § 3.304(f)(3) must be included in the notification to the Veteran. The Veteran should be requested to provide further detail concerning the claimed stressful incident(s) in service. 2. The AOJ should then review the record and determine whether there is sufficient information to attempt verification of any claimed stressor. If so, the appropriate steps should be taken to attempt verification of the Veteran's claimed stressor(s). 3. If any claimed stressor is verified, schedule the Veteran for a VA examination to determine whether he has PTSD which is related to a verified stressor(s). The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed, and their results reported. The examiner should determine the nature and extent of any currently demonstrated acquired psychiatric disorder. A diagnosis of PTSD under DSM IV criteria should be ruled in or ruled out. If PTSD is diagnosed, the examiner should identify the specific stressor or stressors that support that diagnosis. If PTSD is not diagnosed, the examiner should explain why the diagnosis is not supported. With respect to any other currently present acquired psychiatric disorder, the examiner should include an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent that the disorder is related to any disease or injury in service. A discussion of the underlying reasons for all opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Review the record and determine whether any additional development is required with respect to either remanded issue. 5. Then, readjudicate the claims of entitlement to service connection for an acquired psychiatric disorder and for a right hip disability, with application of all appropriate laws, regulations, and case law , and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs