Citation Nr: 1327601 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-36 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a respiratory disorder, to include asthma, claimed as breathing problems. 3. Entitlement to a compensable rating for residuals of a right middle finger injury with Swann-neck deformity. 4. Entitlement to a compensable rating for residuals of a right hand burn. 5. Entitlement to a compensable rating for residuals of a left hand burn. 6. Entitlement to an increased rating for neuralgia of the right hand, currently rated 20 percent disabling. 7. Entitlement to an increased rating for neuralgia of the left hand, currently rated 20 percent disabling. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Andrew Wener, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from May 1979 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the proceeding is in the Veteran's Virtual VA file. The Veteran submitted additional evidence directly to the Board at the hearing with a waiver of RO review. 38 C.F.R. § 20.1304 (2012). The claims for increased ratings for neuralgia of the right and left hands, currently rated 20 percent disabling each; compensable ratings for residuals of right and left hand burns and for residuals of a right middle finger injury with Swann-neck deformity, and for a total disability rating based on individual unemployability due to service-connected disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. A chronic psychiatric disability is not shown in service, and the preponderance of the evidence fails to shows that any currently diagnosed psychiatric disorder, to include major depressive disorder, had its onset in service or is otherwise related to his period of active duty, including an in-service battery acid burn. 2. A chronic respiratory disability is not shown in service, and the preponderance of the evidence fails to shows that any currently diagnosed breathing problem, to include asthma, had its onset in service or is otherwise related to his period of active duty, including an in-service battery acid burn. CONCLUSIONS OF LAW 1. A chronic psychiatric disorder, to include major depressive disorder, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). 2. A chronic respiratory disorder, to include asthma, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 101, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for increased ratings. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) held that VA 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has also observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). In an August 2010 letter, prior to the applicable rating decision in September 2010, the Veteran was provided notice regarding what information and evidence is needed to substantiate his service connection claims, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, these claims. He was also informed of how disability ratings and effective dates are assigned. The Veteran has not demonstrated any other error in VCAA notice; therefore the presumption of prejudicial error as to such notice does not arise. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and neither the Veteran nor his representative has pointed out any specific deficiency to be corrected. Furthermore, the Board concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA 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 VA to make a decision on the claim. In considering the factors at issue here, the Board finds that a VA examination is not warranted for the issues of entitlement to service connection for a psychiatric disorder and breathing problems/asthma. Here, there is no indication that the either of those disabilities may be associated with his military service. Indeed, as discussed below, there is no competent evidence of in-service treatment for a psychiatric disability or a breathing condition, nor has he provided competent and credible evidence of continuity of symptomatology since separation from service. Thus, the Board finds that VA's duty to assist has been adequately met and a remand would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). II. Law and Analysis-Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Evidence of continuity of symptomatology of a disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as psychosis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. Further, a disability which is aggravated by a service-connected disability may be service- connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (2012). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay 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 professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records are completely silent for complaints or a diagnosis of a mental or psychiatric disorder and/or a respiratory disorder, and the Veteran is not competent to diagnose himself with either of these claimed disorders because they require specialized knowledge and medical training to assess. See Jandreau, supra. In his April 1980 Report of Medical History, the Veteran denied asthma, shortness of breath, pain in chest, chronic cough, depression or excessive worry, and nervous trouble of any sort. Upon separation examination in April 1980, clinical evaluation of the Veteran's psychiatric and respiratory systems were within normal limits, and no diseases or defects were denoted. Moreover, the disabilities claimed are not included in the list of chronic diseases that are eligible for service connection on a presumptive basis pursuant to 38 C.F.R. § 3.309. Hence, any allegations of continuity of symptomatology are insufficient to establish service connection on that basis. See Walker, supra. Notably, the Board observes that the claimed disabilities are documented in medical reports several years after the Veteran's discharge from military service. A prolonged period without documented 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 disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board observes that VA treatment reports indicate that the Veteran's mother had bipolar disorder, and there are entries in his records denoting "rule out bipolar disorder." However, the current medical records do not demonstrate that the Veteran was diagnosed with that disorder, including within one year of his discharge from military service. VA treatment reports show that the Veteran has been diagnosed with alcohol dependence, depressive disorder, mood disorder and asthma. However, none of these disabilities are shown by competent medical or competent and credible lay evidence to be related to the Veteran's military service or another service-connected disability. To the extent that the Veteran and others have alleged continuity of symptomatology since discharge, or a relationship between the disabilities and service or a service-connected disability, the Board finds that they are competent to report about symptoms or witnessing symptoms after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (veteran is competent to report symptoms because that requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, although lay persons are competent to provide opinions on some medical issues, the specific disabilities in this case depression/mood disorder/asthma fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, supra. (lay persons not competent to diagnose cancer). Therefore, the Veteran's statements and the other lay statements of record cannot be accepted as competent evidence sufficient to establish service connection. Additionally, the Board finds that the Veteran's assertions are not credible in light of the contemporaneous medical reports that failed to show that the Veteran had any psychiatric or respiratory symptoms, complaints, or diagnoses at the time of his discharge or in the immediate years following his separation. In fact, in June 2009 VA treatment reports, the Veteran noted a past medical history of depression and alcohol problems with treatment in 1984-1986, at least four years after separation. Consequently, the Board finds that the objective contemporary clinical evidence pertaining to the Veteran's medical problems is more probative than later unsupported statements made in conjunction with a claim for VA compensation benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Consequently, the Board finds that no probative weight can be assigned to the statements regarding experiencing psychiatric or respiratory symptoms since service. The Board observes that a medical opinion was not obtained specifically in conjunction with these claims. However, as clearly detailed above, the Veteran's service treatment records do not document either psychiatric or respiratory complaints, symptoms, or diagnoses, and he has not presented competent medical or competent and credible lay evidence that his currently manifested disorders had their onset in service. Hence, the Board finds under such circumstances, VA is not obligated to obtain a VA opinion for these claims. See 38 U.S.C.A. § 5103A (d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service (or VA treatment); and the record does not contain sufficient information to make a decision on the claim). In the absence of any persuasive and probative evidence that the Veteran's current psychiatric and respiratory disorders are etiologically related to active service, service connection is not warranted and the claims must be denied. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Service connection for a psychiatric disorder is denied. Service connection for a respiratory disorder, to include asthma, claimed as breathing problems, is denied. REMAND In June 2010, the Board remanded the issues of entitlement to increased ratings for neuralgia of the right and left hands, currently rated 20 percent disabling each, for the issuance of a statement of the case. In November 2012, the RO mailed the Veteran a statement of the case on these issues. He subsequently submitted a VA Form 9 as to these claims. In May 2013, the Veteran appeared before the undersigned and testified as to the other issues addressed herein. However, testimony as to the claims for increased rating for the neuralgia of the right and left hands was not taken because the November 2012 substantive appeal pertaining to the bilateral neuralgia issues had not been associated with the file at the time of the May 2013 hearing. However, at some point following the May 2013 hearing, the November 2012 substantive appeal was associated with the file, and, in that document, the Veteran requested a hearing before a Veterans Law Judge at the RO. As the Veteran specifically requested a hearing on the claims for increased ratings for the service-connected neuralgia of the right and left hands (in the November 2012 substantive appeal), the Board finds that a remand is necessary so that a hearing may be scheduled as to these issues. Additionally, at the May 2013 hearing before the undersigned Veterans Law Judge, the Veteran testified that his right and left hand burn residuals had worsened since his April 2008 VA examination and that his right middle finger injury residuals had worsened since the December 2009 VA examination. Therefore, due to the passage of time and the Veteran's assertions, the Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of his service-connected right and left hand burn residuals and his service-connected residuals of a right middle finger injury with Swann-neck deformity. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new evaluation after a two year period between the last VA examination and the Veteran's contention that his disability has increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). VA is required to afford the Veteran a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer, 10 Vet. App. at 403; see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Further, in light of the development requested with regard to the service-connected right and left hand burn residuals and the service-connected right middle finger injury residuals, the Board finds that the claim for a total disability rating based on individual unemployability due to service-connected disabilities must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The Veteran is hereby notified that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the case. 38 C.F.R. § 3.655 (2012). See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not always a one-way street and if a Veteran desires help with his claim he must cooperate with VA's efforts to assist him). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request the names and addresses of all medical care providers who treated him for right and left hand burn residuals and for right middle finger injury residuals in the past several years. After securing the necessary release(s), the RO should obtain these records. (Duplicate records should not be included in the file). 2. Schedule the Veteran for a VA skin examination to ascertain the current severity of the service-connected right and left hand burn residuals. The examiner must review the entire claims file in conjunction with the examination. All studies or tests deemed necessary should be conducted. All pertinent symptomatology and findings pertaining to the right and left hand burn residuals should be reported in detail, including noting any specific functional impairment associated with the disability. 3. Also, schedule the Veteran for an appropriate VA examination to ascertain the current severity of the service-connected residuals of a right middle finger injury with Swann-neck deformity. The examiner must review the entire claims file in conjunction with the examination. All studies or tests deemed necessary should be conducted. All pertinent symptomatology and findings pertaining to this residual disability should be reported in detail, including noting any specific functional impairment associated with the disorder. 4. After the development requested above has been completed to the extent possible, the issues of entitlement to compensable ratings for the service-connected residuals of burns on the right and left hands and the service-connected residuals of a right middle finger injury with Swann-neck deformity should be readjudicated based on all the evidence of record. If any of these benefits remain denied in any way, the Veteran and his attorney should be furnished a supplemental statement of the case, and given the opportunity to respond. 5. After the above development has been completed and prior to returning the file to the Board for appellate consideration, schedule the Veteran for a hearing before a Veterans Law Judge at the RO at the earliest available opportunity-with regard to the claims for compensable ratings for of neuralgia of the right and left hands-unless he otherwise indicates that he no longer wants a hearing on these issues, with appropriate notification to the Veteran and his attorney at least 30 days prior to the hearing date in accordance with 38 C.F.R. § 19.76 (2012). A copy of the notification letter must be placed in the claims file. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matters that 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 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). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs