Citation Nr: 1323666	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  10-15 693	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, including post traumatic stress disorder (PTSD).  

2.  Entitlement to service connection for hypertension.  

3.  Entitlement to service connection for a chronic kidney disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1955 to October 1957.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In May 2011, a travel board hearing was held before the undersigned in Cleveland, Ohio.  A transcript of the hearing is associated with the Veteran's claims file.

The case was remanded by the Board in May 2012 for due process and further development of the evidence.  This has been accomplished and the case has been returned for further appellate consideration.  

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).


FINDINGS OF FACT

1.  A chronic acquired psychiatric disability, including PTSD, has not been demonstrated in service or thereafter.  

2.  Hypertension was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event.

3.  A chronic kidney disorder was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event.


CONCLUSIONS OF LAW

1.  A chronic acquired psychiatric disorder, including PTSD, was neither incurred in nor aggravated by service.  38 U.S.C.A. § 1131 (West  2002); 38 C.F.R. § 3.303 (2012).

2.  Hypertension was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  

3.  A chronic kidney disorder was neither incurred in nor aggravated by service nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims.  September 2009, October 2009,. And May 2012 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing.  These letters also informed the Veteran of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond and supplement the record.

With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO arranged for a VA examination pursuant to remand by the Board in April and May 2013, but the Veteran did not report for either scheduled examination.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655 (b).  Under these circumstances, the Board will rated based upon the evidence of record.  Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  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.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension and kidney disease, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

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); 38 C.F.R. § 3.102 (2011).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Id.  Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate.  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1).

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F. 3d at 1377.  Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

Service connection for PTSD requires that three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2011).  See Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), and be supported by the findings of a medical examiner.  See 38 C.F.R. § 4.125 (a) (2012).

In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the service member served, the service member's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. §§ 3.303(a),3.304 (2012).  

The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the service member engaged in "combat with the enemy."  If the evidence establishes that the service member engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, (and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service), the service member's lay testimony alone may establish the occurrence of the claimed in-service stressor.  See 38 C.F.R. § 3.304(d) (2011); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. 

VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality."  The determination whether evidence establishes that a service member engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256 -58 (Feb. 8, 2000). 

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans.  See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010).  Previously, VA was required to undertake extensive development to determine whether a non-combat Veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor.  Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source.  See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. 

The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of  38 C.F.R. § 3.304(f)(3) states: 

If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 

For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 

See 38 C.F.R. § 3.304 (f)(3) (2012).  The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the service member had prior to enactment of the new rule.  See VAOPGCPREC 7-2003 (Nov. 19, 2003).  However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. The appellant in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, but not decided by the Board as of July 13, 2010.  

Service Connection for an Acquired Psychiatric Disorder,
Including PTSD

The Veteran contends that service connection is warranted for an acquired psychiatric disorder, including PTSD.  He has asserted, in correspondence and testimony before the undersigned in May 2011, that his psychiatric disorder is the result of stressful events that occurred while he was on active duty.  For this reason, the Board interpreted his claim to include a claim of service connection for PTSD.  

The Board has reviewed the entire evidence of record, including the Veteran's STRs and all available postservice medical records and finds no confirmed diagnosis of an acquired psychiatric disorder, including PTSD.  In this regard, it is noted that STRs, including examinations for entry and separation from active duty show no complaint or manifestation of a psychiatric disorder.  Although the Veteran testified that he had been hospitalized at a naval hospital in Portsmouth, Virginia for treatment of a psychiatric disorder, attempts to locate records of this treatment have not been successful.  A May 2013 memorandum formally found that these records are not available.  STRs do include records from Portsmouth Naval Hospital, dated in May 1956,  for an evaluation of a possible seizure disorder, but no examination for a psychiatric disability.  The diagnosis at that time was neurological observation, no disease found.  

Review of the post-service treatment records does not reveal a diagnosis of an acquired psychiatric disability.  While investigation of the stressful events claimed by the Veteran has found at least one to be credible, in order for service connection to be established, there must be a confirmed diagnosis.  VA outpatient treatment records show that the Veteran was evaluated in December 2009, when PTSD screening was positive, and for possible suicide ideation in January 2010, but no impression or assessment of an acquired psychiatric disability was made.  As noted,  the Veteran was scheduled for VA examinations in April and May 2013, but did not appear for either examination.  

Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, as an acquired psychiatric disability, including PTSD, has not been demonstrated at any time during the appeal, service connection must be denied.  

Service Connection for Hypertension

The Veteran contends that service connection is warranted for hypertension.  During testimony before the undersigned in May 2011, the Veteran stated that he believed that his hypertension was caused by nervousness associated with his claimed psychiatric disability.  As service connection is not currently in effect for a psychiatric abnormality, this aspect of the claim is without merit.  

Hypertension is persistently high arterial blood pressure with suggested threshold levels starting at 140 mm/Hg systolic and 90 mm/Hg diastolic.  Dorland's Illustrated Medical Dictionary, 799 (27th ed. 1988).  Note (1) to Diagnostic Code 7101 recognizes the disability of hypertension when the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension when the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104 (2011). 

Review of the Veteran's STRs shows blood pressure readings to be within normal limits.  Post-service treatment records show a diagnosis of hypertension concurrent with the present appeal.  During the Board hearing before the undersigned the Veteran testified that his hypertension was first diagnosed three years earlier.  The absence of clinical treatment records for approximately 50 years after active duty is probative evidence against continuity of symptoms since service.  Mense v. Derwinski, 1 Vet. App. 354 (1991).  (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without 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 a disease was incurred in service which resulted in any chronic or persistent disability).  Thus, the lack of any evidence of hypertension, symptoms, or findings for so many years between the period of active service and the first manifestation of hypertension is itself evidence which tends to show that the disability did not have its onset in service or for years thereafter.  

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

Service Connection for Kidney Disability

The Veteran contends that service connection is warranted for a chronic kidney disability.  His primary contention is that the kidney disease is related to hypertension, which is, in turn, related to a psychiatric disability.  As service connection is not currently in effect for any disability, the claim of secondary service connection is without merit.  

Review of the Veteran's STRs shows no evidence of kidney disease while the Veteran was on active duty.  Records of private treatment show evidence of end stage kidney disease in 2009.  As with the Veteran's claim of service connection for hypertension, the Veteran's kidney disease was not manifested during service or within one year thereafter.  The Veteran has not contended that he had continuous manifestations of kidney disease in the years after service.  The absence of clinical treatment records for approximately 50 years after active duty is probative evidence against continuity of symptoms since service.  See Mense, 1 Vet. App. at 354.  For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for chronic kidney disability, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for an acquired psychiatric disability, including PTSD, is denied.  

Entitlement to service connection for hypertension is denied.  

Entitlement to service connection for a kidney disability is denied.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs