Citation Nr: 1326522 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 07-20 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hand disorder. 2. Entitlement to service connection for hypertension, to include as secondary to an innocently acquired psychiatric disorder. 3. Entitlement to service connection for an innocently acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the RO. In March 2008 and July 2008, the Veteran testified at hearings before a Decision Review Officer (DRO). In June 2012, the Veteran testified from the RO at a videoconference hearing held with the undersigned Veterans Law Judge (VLJ). In September 2012, the Board reopened claims of service connection for a bilateral hand disorder and hypertension. These issues were remanded for further development. The Board also remanded the issue of service connection for an innocently acquired psychiatric disorder, claimed as PTSD, and as an adjustment disorder, anxiety and depression. In May 2013, the RO granted service connection for depressive disorder and assigned a 30 percent evaluation effective on February 2, 2006. The RO indicated that this represented a total grant and that this issue was considered resolved. On review, the Board agrees that the grant of service connection for depressive disorder resolved the appeal as to the issue of service connection for an innocently acquired psychiatric disorder, claimed as an adjustment disorder, anxiety and depression. The December 2012 VA examiner diagnosed depressive disorder and indicated that the Veteran's symptoms, to include anxiety and panic attacks, applied to that diagnosis. The Virtual VA and VBMS folders have been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings of a chronic hand disorder during service or for many years thereafter. 2. The currently demonstrated bilateral hand disability manifested by degenerative joint changes, neuropathy and trigger finger is not show to be due to the injury sustained in May 1970 during service or another event or incident of his period of active service. 3. The Veteran is not shown to have manifested complaints or findings of high blood pressure in service or for many years thereafter. 4. The currently demonstrated hypertension is not shown to be due to a documented event or incident of the Veteran's period of active service or to have been caused or aggravated by the service-connected psychiatric disability. 5. The Veteran is shown as likely as not to have a diagnosis of PTSD that is due to a documented stressor event during his period of active service, CONCLUSIONS OF LAW 1. The Veteran's bilateral hand disability manifested by is not due to disease or injury that was incurred in or aggravated by active service, nor may any arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The Veteran's disability manifested by hypertension 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; nor is proximately due to or the result of the service-connected psychiatric disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. By extending the benefit of the doubt to the Veteran, a disability manifested by PTSD is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With regard to the current appeal, the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By letters dated in June 2005, March 2006 and March 2007, VA notified the Veteran of the information and evidence needed to substantiate a service connection claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran was also provided notice of how VA assigns disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical center records, and Social Security Administration records (SSA). The RO was unable to obtain the Veteran's service personnel records, and these were determined to be unavailable. A formal finding regarding the unavailability of these records was completed in June 2008 and the Veteran was notified of same. Pursuant to the September 2012 remand, the RO was requested to attempt to obtain the deck logs for the U.S.S. Lyman K. Swenson for the period from March 1, 1970 to April 30, 1970. In October 2012, the RO requested the deck logs from the National Archives. In a subsequent response, the National Archives noted that they were a small staff with limited abilities to conduct research and make free copies. They noted that the basis for the request was not provided and they took the liberty to enclose only those records that placed the ship in the vicinity of Vietnam, to include Da Nang Harbor. They further noted that if the Veteran was pursuing a claim for PTSD and/or Agent Orange exposure, the inquiry should be directed to the Joint Services Records Research Center (JSRRC). In May 2013, the RO completed a formal finding on the unavailability of additional deck logs and the Veteran was notified. On review, the Board finds that there was sufficient compliance with the remand directives and that further attempts to obtain additional deck logs are not needed. See Dyment v. West, 13 Vet. App. 141 (1999). As discussed below, the deck logs that were received serve to establish one of the Veteran's claimed stressors. In November 2010, the RO completed a formal finding that there was not enough information to corroborate claimed Agent Orange exposure. The Veteran has been provided VA examinations to determine the nature and etiology of his claimed bilateral hand disorder and hypertension. The evidence of record is adequate and additional examination is not warranted. The Veteran was provided the opportunity to present pertinent evidence and testimony in support of his claims. The VLJ's actions at the videoconference hearing supplement the VCAA and comply with any hearing related duties. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis and hypertension, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disease or injury. 38 C.F.R. § 3.310. This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The regulations governing PTSD were amended, effective July 13, 2010. 38 C.F.R. § 3.304(f)(3) (2012); 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor 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 that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. The law also establishes a presumption of entitlement to service connection for listed diseases associated with exposure to certain herbicide agents, and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If a veteran served on active duty in the Republic of Vietnam during the Vietnam era (beginning on January 9, 1962 and ending on May 7, 1975), he is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id.; see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (service in the Republic of Vietnam means that the Veteran actually set foot within the land borders of Vietnam). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Bilateral hand disorder The Veteran asserts that he developed a bilateral hand disorder after falling into the Kaohsiung Harbor in 1970. At a March 2008 hearing, the Veteran testified that, after he went ashore for some "R&R," while going from a little boat to the destroyer, he lost his balance and fell into the water, injuring his hands. At the June 2012 hearing, the Veteran testified that he had osteoarthritis, a motor sensory deficiency, and trigger finger. He reported that his hands had hurt since he got out of the Navy. He added that he fell into a harbor and hurt his hands against concrete. The Board observes that service connection for carpal tunnel syndrome of the bilateral upper extremities was denied in July 2011 and not appealed. Nonetheless, this disability was referenced in the September 2012 remand. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The service treatment records showed that the Veteran reported to sick bay in May 1970 with abrasions and contusions of both hands. It was noted that he either fell or jumped into the Kaohsiung Harbor during the previous night. He was given a tetanus shot, painted with Merthiolate, and instructed to return to the clinic as needed. At the time of the examination at separation from service in February 1971, the Veteran's upper extremities were reported to be normal. A May 2005 VA record shows the Veteran was seen with left hand swelling for one week. The X-ray studies were noted to show minimal degenerative changes. The assessment was that of left hand swelling. In August 2005, the Veteran was seen with complaints of pain to his hands and wrists. The assessment was that of degenerative joint disease of the hands. The Veteran underwent EMG/NCV testing in December 2005. Conclusions were: (1) bilateral median motor distal latencies slightly prolonged with decreased motor nerve conduction velocity for left median nerve; and (2) left median and right ulnar sensory latencies unobtainable. The study was noted to be consistent with sensory-motor polyneuropathy. A June 2006 orthopedic surgery consultation noted a diagnosis of bilateral carpal tunnel syndrome, stable. The Veteran underwent a VA examination in July 2008 and reported that he fell when jumping from a boat to his ship and hurt his hands and wrists. He was treated for contusions and abrasions, and there were no other symptoms until 2005 when he began having pain, stiffness and weakness on both wrists and hands. The X-ray studies were read as showing "negative wrists and no arthritic changes of hands." There was noted to be a small cyst on the head of the third metacarpal on the left. The diagnosis was that of "[a]rthritis both hands, not found." The VA examiner stated that "[i]t [was] at least as likely as not that the hand arthritis [was] due to an injury during service." Notwithstanding, the examiner went on to state the following: The injury sustained in May 1970 was minimal and without apparent sequelae. There was no mention of fracture, cast or immobilization. An exam done a year later did not indicate problems with hands or joints. The current x-rays failed to show healed fracture or degenerative changes. The [V]eteran's symptoms [were] more likely secondary to carpal tunnel syndrome than traumatic arthritis. An April 2009 neurology note showed that a NCV procedure showed sensory motor neuropathy. Subsequent VA records continued to show complaints of bilateral upper extremity dysesthesia and treatment related to carpal tunnel syndrome and trigger fingers. The Veteran most recently underwent a VA examination in December 2012. Following a review of the claims file and an examination of the Veteran, the examiner remarked that the Veteran had mild degenerative arthritis mainly in left hand and that no current bilateral carpal tunnel syndrome was found. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In support of this opinion, the examiner set forth a detailed discussion of the Veteran's history, specifically noting that he was only seen once in service and that objective findings were not shown for many years following service. The examiner stated that it was his opinion that the current bilateral hand condition happened after he left service and was less likely than not due to the May 1970 injury which had already resolved during service. On review, the medical opinion appears to have determined that the in-service injury was acute and transitory and resolved without residuals. There is no evidence of bilateral hand arthritis during service, and a diagnosis was not noted until many years following discharge. While the Board acknowledges the Veteran's reports of ongoing hand problems since service, it finds that neither the chronicity nor continuity of symptomatology rules of 38 C.F.R. § 3.303(b) are for application in this case. See Walker. Additionally, presumptive service connection as a chronic disease is not warranted. In determining whether any current disability is related to active military service, the Board acknowledges that carpal tunnel syndrome was not found on the last examination but notes that the requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In considering whether there is any relationship between any currently diagnosed disability and the in-service injury, the record contains two VA medical opinions. The July 2008 VA opinion is arguably positive as written. However, when reviewing the rationale, it is obvious that a negative opinion was intended. Moreover, the December 2012 VA opinion was also negative and is considered to be highly probative to the extent that was based on a thorough review of the record, identified objective findings, and a supporting rationale. The Board acknowledges the Veteran's contentions and notes that in some cases, lay evidence may be competent and probative evidence of etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1315 (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology). Certainly, the question of medical causation presented in this case is one that is beyond the range of common experience and knowledge and requires the specialized knowledge and experience of a trained physician. Nothing in the record demonstrates that the Veteran has any medical expertise in evaluating and determining causal connections for arthritis and/or carpal tunnel syndrome, and his lay statements are found to be of limited probative worth as to nexus in this case. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Here, the Veteran's current assertions of having had hand manifestations since suffering the injury in service, are found to be of limited probative value for the purpose of linking the onset of the current bilateral hand disability to the injury documented in the service treatment records or another event or incident of his period of active service. On review, the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Hypertension The service treatment records do not reflect a diagnosis of hypertension or any complaints or findings referable to elevated blood pressure. On examination at the time of separation from service in February 1971, the Veteran's blood pressure was 102/78. The Veteran underwent a VA Agent Orange evaluation in May 2003. At that time, his blood pressure was 150/90. A July 2003 letter from VA indicated that he was examined for the possible after-effects of exposure to Agent Orange and that essential hypertension was noted during his examination. At the June 2012 hearing, the Veteran testified that he thought he should be service-connected for hypertension because it was noted at his Agent Orange examination. On VA examination in December 2012, the Veteran denied being diagnosed or treated for hypertension during service. In 2003, his blood pressure was noted to have been high, and he was started on Lisinopril. Based on the examination, the examiner opined that the hypertension was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The examiner discussed the evidence of record and noted that the Veteran did not have a diagnosis of hypertension during service or earlier than 2003. The examiner further noted that hypertension was not a disease that was related to herbicide exposure. Regarding the claim of secondary service connection, the examiner opined that hypertension was less likely than not caused or aggravated permanently by his diagnosed psychiatric disorder. As noted, there is no evidence of high blood pressure during service or for many years thereafter. Under these circumstances, the Board finds that neither the chronicity nor continuity of symptomatology rules of 38 C.F.R. § 3.303(b) are for application in this case. See Walker. Additionally, presumptive service connection as a chronic disease is not warranted. The Veteran, however, contends that his hypertension is related to in-service Agent Orange exposure and/or secondary to his psychiatric disorder. The Veteran served in the Navy. Military Occupational Specialty (MOS) was the equivalent of water transportation occupations. Regarding claimed Agent Orange exposure, the Veteran asserts that he served on the inland waterways. Specifically, on the Da Nang River between March and April 1970. He also argued that he drank water contaminated with Agent Orange. The deck logs confirm that the Veteran's ship was underway in Da Nang Harbor and also anchored off the western coast of the Republic of Vietnam at various times in April 1970. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 10(k) specifically notes that, "[s]ervice aboard a ship that anchored in an open deep-water harbor, such as Da Nang ... along the RVN coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the Veteran served as a coxswain aboard ship and reports going ashore during anchorage." The available information shows that the U.S.S. Lyman K. Swenson traveled up the Saigon River for a four day visit to Saigon in May 1964. There is no indication, however, that this ship operated on inland waterways during the Veteran's period of service. See Agent Orange: Alphabetized Ship List (updated July 2013), http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp. Nonetheless, to the extent that the Veteran asserts that he was exposed to Agent Orange, hypertension is not found to be listed as a disease associated with herbicide exposure, and presumptive service connection based on such exposure is not warranted. See 38 C.F.R. § 3.309(e). Additionally, the record does not contain competent evidence otherwise relating currently diagnosed hypertension to claimed herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (A veteran is not precluded from establishing service connection with proof of actual direct causation). The fact that the Veteran underwent a VA Agent Orange examination does not serve to establish any herbicide exposure or a causal relationship between any exposure and the disorders diagnosed at that time. The Board also acknowledges the Veteran's lay assertions. However, these statements alone are found to have limited probative value for the purpose of related the current hypertension to claimed Agent Orange exposure during service. See King. As discussed, the recently obtained VA medical opinion is found to be probative evidence that weight heavily against the Veteran's claim. The record also does not contain medical evidence that tends to support the Veteran's lay assertions. Hence, on this record, the preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. PTSD The Veteran contends that he has PTSD related to his military service. Throughout the appeal, he has consistently reported having two stressors: (1) that he fell into a harbor when trying to board his destroyer from a small craft; and (2) that his ship was involved in actual naval bombardments and provided close-in fire support for ground forces. In a July 2008 statement, the Veteran reported being fearful for his life and the lives of his friends during these times. At the videoconference hearing, the Veteran testified that he remembered his ship bombarding of the shores of Vietnam and also falling into the harbor during service. The service treatment records confirmed that the Veteran fell into a harbor in May 1970. A May 2010 note by RO personnel indicated that VA had conceded this stressor. In addition, a review of available deck logs showed that, in April 1970, the Veteran's ship conducted gun fire support for the 198th Light Infantry Brigade in the Republic of Vietnam. They also conducted "H&I" (harassment and interdiction) fire in support of the 1st Marine Division. Given this information, the Board concedes the second stressor. The question remains as to whether the Veteran has a confirmed diagnosis of PTSD related to these in-service stressors. In reviewing the record, the claims folder contains both positive and negative evidence. The VA medical records showed that the Veteran had been diagnosed with and received treatment for PTSD. An April 2007 VA mental health treatment plan noted chronic PTSD related to Vietnam. A September 2010 record included a diagnosis of PTSD combat related. The records dated in May 2011 and February 2012 noted a diagnosis of generalized anxiety disorder with some PTSD symptoms. In connection with his SSA claim, the Veteran underwent a mental status evaluation in September 2005. The diagnosis was that of depressive disorder, not otherwise specified. Notwithstanding, the SSA decision notes various impairments, to include PTSD. The Veteran underwent a VA examination in June 2010 when he identified the two referenced stressors. Following examination, the examiner stated that the Veteran failed to meet the full criteria for a PTSD diagnosis. The Veteran most recently underwent a VA examination in December 2012. The examiner opined that he did not meet the criteria for a diagnosis of PTSD. The examiner noted that the Veteran reported feeling guilty due to participating in naval bombardments, but did not indicate whether that event was a sufficient stressor to support a diagnosis of PTSD. He further noted no other exposure to a traumatic event. In an April 2013 addendum, the examiner stated that he reviewed the claims file and was not making any changes to his report. To the extent that neither examination fully addressed the sufficiency of either of the Veteran's documented stressors, the Board finds the record is not sufficient to rule out the diagnosis of PTSD. Accordingly, in reviewing the entire record, the Board finds the evidence to be in relative equipoise in showing that the Veteran as likely as not has diagnosis of PTSD that is related to documented stressors during his period of active service. In resolving all reasonable doubt in the Veteran's favor, service connection for PTSD is warranted. See 38 C.F.R. § 3.102. As discussed, the Veteran is already service connected for depressive disorder. Evaluating the same symptoms under different diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012). To the extent the record may contain other Axis I diagnoses, the Board observes that such are rated under the same General Rating Formula for Mental Disorders (38 C.F.R. § 4.130 , Diagnostic Codes 9201-9440). Thus, the Board finds a separate discussion of any other diagnosed psychiatric disorder unnecessary. See 38 C.F.R. §§ 4.14; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (regarding whether separate ratings would ever be warranted for variously diagnosed psychiatric disabilities). ORDER Service connection for a bilateral hand disorder is denied. Service connection for hypertension, to include as secondary to the service-connected psychiatric disability, is denied. Service connection for an acquired psychiatric disability manifested by PTSD is granted. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs