Citation Nr: 1326191 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-14 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for brain damage, to include as secondary to asbestos exposure and being kicked in the head. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder INTRODUCTION The Veteran had active duty service from January 1976 to February 1976 and from December 1978 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that denied the benefits sought on appeal. In his substantive appeal received in May 2007, the Veteran checked the appropriate box to indicate his desire for a hearing before the Board at the RO. In a statement received in September 2007, however, he cancelled the hearing and requested that his appeal be reviewed by the Board as soon as possible. He did testify at a May 2007 hearing before an RO Decision Review Officer (DRO). A transcript is of record and has been reviewed. The following issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ): entitlement to service connection for acquired psychiatric disability, to include paranoid schizophrenia and schizoaffective disorder; and, whether new and material evidence has been received to reopen claims of entitlement to service connection for anxiety, depression, and bipolar disorder. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In September 2010, the case was remanded to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development. The Board noted the issues referred above in the styling of the issues on the September 2010 cover sheet in an effort to comply with Clemons v. Shinseki, 23 Vet. App. 1 (2009) and the AMC included them in the April 2012 Supplemental Statement of the Case (SSOC). They were again noted in the December 2012 Board remand. However, including the referred issues in the May 2012 SSOC was improper, as they had not been adjudicated by the June 2007 rating decision or noted on the April 2007 SOC. 38 C.F.R. § 19.31(a) (2012). Thus, the Board notes that, at the time of the September 2010 remand first listing those issues, they had not been adjudicated by the AOJ. Hence, Clemons notwithstanding, the issues should have been referred to the AOJ. Therefore, as noted above, they are now referred to the AOJ. Moreover, in so finding, the Board is aware of Percy v. Shinseki, 23 Veteran. Appellant. 37. In that case, a claim had been initially adjudicated in a rating decision, to which the Veteran responded with a notice of disagreement. A statement of the case followed, but no substantive appeal was filed. In any event the appeal was certified. It was ultimately held that, despite the absence of a substantive appeal, by treating the issue as though it were part of the timely filed appeal, VA waived any objections to its timeliness. The instant case is distinguishable, however, in a critical facet- here the matter was never properly adjudicated by the RO (i.e., there was no rating decision ever issued). FINDINGS OF FACT 1. The AMC completed the additional development directed in the September 2010 remand. 2. The preponderance of the evidence of record shows no current diagnosis of PTSD. 3. The preponderance of the evidence of record shows no current diagnosis of an asbestos-related disease. 4. The preponderance of the evidence of record fails to show that the Veteran sustained brain trauma in active service. Organic brain syndrome manifested several years after service. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2012). 2. The requirements for entitlement to service connection for brain damage, to include organic brain syndrome, due to claimed asbestos exposure and trauma, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the rating decision on appeal, the Veteran was sent a notice letter in July 2005. This communication explained the division of responsibilities between VA and a claimant in developing an appeal. The letter also expressly informed the Veteran how to substantiate a service connection claim and what type of information and evidence was needed to establish a disability rating and effective date in the event service connection is granted. The Board finds the July 2005 letter was fully time- but not entirely content-compliant. 38 C.F.R. § 3.159(b). The sole content deficiency is that the July 2005 letter did not inform the Veteran how disability evaluations and effective dates are determined. See Dingess/Hartman, 19 Vet. App. 473. This deficiency was cured by a March 2006 letter. Since both letters were issued prior to the June 2006 rating decision, the Board finds compliance. Further, neither the Veteran nor his representative asserts having been misled or any other specific prejudice as a result of the initial error. See Shinseki v. Sanders, 129 S. Ct. 1696, 173 L.Ed.2d 532 (2009). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Upon receipt of the Veteran's claim, the RO obtained the service treatment records, identified private treatment records, VA outpatient records still extant, and records of the Social Security Administration (SSA) related to the Veteran. Further, the Board remanded the case to attempt to obtain additional VA records noted in the SSA records. The AMC informed the Veteran of the status of the records-requests and asked the Veteran if he personally possessed copies of all records not obtained. Neither the Veteran nor his representative asserts that there is additional evidence to be obtained, or that VA has failed to seek any records identified as relevant. The Board notes the Veteran was not afforded a VA examination in connection with the adjudication of his claims. Under the VCAA, VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Applying the above standard in a liberal, pro-veteran manner, the Board finds some evidence of Elements 1 through 3. Specifically, there are private treatment records that note a diagnosis of, or possibility of, organic brain syndrome; and the Veteran's lay testimony that he sustained head trauma in 1976 while in basic training. See 38 C.F.R. § 3.159(a)(1); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Nonetheless, the Board Element 4 is not present, as there is in fact sufficient competent medical evidence to decide the Veteran's appeal. Hence, the Board finds the RO did not fail to assist the Veteran with his claim by not arranging an examination. In light of the above, the Board finds VA has fully assisted the Veteran with his claim, and that the record is sufficiently developed for a decision on the merits of the appeal without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed all the evidence in the Veteran's Virtual and paper claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases such as certain organic diseases of the central nervous system are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.307, 3.309. The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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 Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy. 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. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Brain Damage Analysis The Veteran testified at his RO hearing that he sustained head trauma during basic training in February 1976 at San Diego, California. He testified that his unit was engaged in drills with pugel sticks, and he observed a drill sergeant beat up a scrawny marine. The Veteran related he intervened and hit the drill sergeant. After he hit the sergeant, other drill sergeants jumped him and beat him repeatedly. The Veteran testified he was in and out of consciousness, and he awoke in correctional custody. The Veteran testified he had no idea how he got from the locale of the incident to correctional custody. He noted that he received 60 days correctional custody as punishment for his part in the incident. The Board notes that correctional custody is one of the forms of nonjudicial punishment authorized under the Uniform Code of Military Justice. See 10 U.S.C.A. § 815. He also testified that someone in correctional custody told him he had brain damage. The service treatment records for the Veteran's brief initial tour of active service are negative for any complaints or treatment for any type of head trauma. Documentation in the Veteran's service personnel records dated in February 1976 notes that the Veteran was recommended for separation for unsuitability due a negative attitude and lack of effort to meet training requirements. The form notes that the Veteran did not have any incapacitating mental or physical disability, and there was no requirement for psychiatric treatment. The examiner noted that the Veteran was dissatisfied with the U.S. Marines and was seeking a discharge. His behavior was deemed a reflection of that goal. No psychiatric diagnosis or disposition was entered. Another document dated in February 1976 notes the Veteran's receipt of nonjudicial punishment for disrespect to a sergeant in speech and mannerism in January 1976. His punishment included seven days of correctional custody. The document gives no indication of a physical altercation between the Veteran and the sergeant. An August 1978 Report of Medical Examination conducted prior to the Veteran's entry into the U.S. Navy reflects the Veteran's neurological area was assessed as normal. Documents in the Veteran's Naval service personnel records dated in March 1979 include a handwritten statement by the Veteran that addressed past incidents in his life. He included the incident in 1976, but the details were significantly different from those he testified to at the RO hearing. The similarity between the two is that the Veteran related he did confront his drill instructor for, in the Veteran's words, abusing another marine, he and the instructor got in a fight, and he filed charges against the instructor at a later time. Where the two accounts differ markedly is that there is no mention of others being involved or that he was beat up by several other drill instructors, let alone to the point of losing consciousness. A March 1979 entry in the service treatment records notes the Veteran's complaints of severe headaches and blurred vision, and photophobia. He reported further that his symptoms had increased after he had performed welding without goggles because he was intoxicated. The Veteran sustained a welder's burn as a result, which he self-treated. Physical examination revealed no neurological-related findings. This is also the case with an October 1979 VA summary that notes no findings of brain trauma or neurological deficits. The private treatment records in the claims file document the Veteran's extensive history of alcohol abuse and poly-illicit drug abuse that started prior to his initial entry into active service and continued therein. The Veteran was discharged from the Navy prior to the expiration of his term of service because he refused to complete drug and alcohol rehabilitation. The October 1979 Report of Medical Examination reflects normal neurologic findings. An August 1985 private psychiatric evaluation report notes the Veteran's report of visual and auditory hallucinations and his extensive history of polysubstance abuse and dependence. The psychiatrist-examiner rendered an Axis I diagnosis of mixed organic brain syndrome with affective, delusional and hallucinatory components, probably secondary to the Veteran's chronic alcohol and drug abuse of many years' duration. This report is the earliest indication of a brain syndrome, and the Veteran did not report, nor did the examiner find, that it was due to trauma. An April 2003 VA Psycho-Vocational evaluation of the Veteran notes that right and left hand grip strength and finger tapping disparity could be suggestive of right frontal lobe impairment. Thus, rule-out organic brain syndrome was included in the Axis I diagnosis. The report, however, specifically noted that the testers did not have access to any of the Veteran's medical records or past history. Their sole source of historical information was the Veteran. In light of all of the above, the Board finds the Veteran's claim of 1976 in-service head trauma incredible. The Board finds more credible his statement made closest in time to the claimed event, which was the March 1979 statement. As noted earlier, the Veteran gave no indication in that statement of head trauma or of sustaining a severe beating. Hence, the Board rejects the later accounts. Second, the August 1985 medical report of examination reflects the examiner's opinion that the Veteran's long-term drug abuse was the etiology of his organic brain syndrome. Thus, the Board is constrained to find the preponderance of the evidence is against the claim. 38 C.F.R. § 3.303. PTSD In addition the requirements for service connection set forth above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with the applicable regulatory criteria, which is: a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Section 4.125(a) of 38 C.F.R. incorporates the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD. Analysis The service treatment records are silent for complaints of or treatment for PTSD. The claims file contains extensive private treatment records that date from the 1970s. These records do not reflect a diagnosis of PTSD. At the RO hearing, the Veteran conceded he did not have a diagnosis of PTSD. Neither had he received any treatment for PTSD or been told by a medical professional he had PTSD. In the absence of a current diagnosis of PTSD, there is no factual basis for the award of service connection for the disorder. 38 C.F.R. §§ 3.303, 3.304(f). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for brain damage, to include as secondary to asbestos exposure and being kicked in the head, is denied. Entitlement to service connection for PTSD is denied. ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs