Citation Nr: 1329774 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 05-32 651A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depression. 2. Entitlement to service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from July 1961 to September 1964. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 20005 and April 2006 rating decisions of the Columbia, South Carolina, and Montgomery, Alabama, Regional Office (ROs) of the Department of Veterans Affairs (VA). The latter RO certified these claims to the Board for appellate review. The claims were remanded in October 2012 for evidentiary development and have now been returned to the Board for further appellate consideration. A Travel Board hearing was held before a Veterans Law Judge (VLJ) in June 2011, sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In June 2013, the Veteran was notified that the VLJ who conducted the hearing was no longer employed by the Board. Although he was offered an additional hearing before the Board, the Veteran indicated that he did not wish to appear at another hearing. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran has PTSD that is related to his military service. 2. Reactive arthritis and/or seronegative spondyloarthropathy were not manifested in the first post service year, and are not shown to be related to active service or any event/injury therein. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the Veteran has PTSD that was incurred as a result of his military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). 2. Service connection for a reactive arthritis or seronegative spondyloarthropathy is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, and the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim of entitlement to service connection for an acquired psychiatric disorder on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As to the claim for service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis, VA first has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include October 2004, November 2012 and February 2013) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, to include records as provided by the Social Security Administration (SSA), VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, supra. During the June 2011 hearing, in relevant part, the presiding VLJ identified the present issue on appeal, and the testimony of the Veteran, to include the questions posed by his accredited representative, focused on the elements necessary to substantiate the current appellate claim; i.e., the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. Next, specific VA medical examinations and opinions pertinent to the issue on appeal were obtained in May 2013 to assess the etiology of the disabilities on appeal. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable laws and regulations and/or rating criteria. See 38 C.F.R. § 3.327(a) (2012); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Service Connection The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. C.F.R. § 3.303(b) (2012). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As arthritis is recognized as chronic under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is for consideration with respect to the claim for service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis. Id. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). However, the 38 U.S.C.A. § 1111 presumption of soundness "requires that there be an examination prior to entry into the period of service on which the claim is based. In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Smith v. Shinseki, 24 Vet. App. 40 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (presumption of sound condition attaches where there was an induction examination); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Presumptions of soundness, aggravation, and regarding certain conditions that are considered to be chronic, per se, only apply to periods of active duty, not ACDUTRA or inactive duty training. See Paulson v. Brown, 7 Vet. App. 466 (1995); Biggins v. Derwinski, 1 Vet. App. 47478 (1991). Psychiatric Disorder The Veteran served on active duty from July 1961 to September 1964, to include service aboard the USS ASHLAND. He does not contend that he participated in combat. He claims that he has an acquired psychiatric disorder, to include PTSD and depression, as a result of his active service. Alleged in-service stressors include being frightened aboard ship at the time of the Cuban missile crisis and the report that a fellow soldier who he considered a friend was found hanged in a shaft aboard ship. Recently, the Defense Personnel Records Information Retrieval System (DPRIS) confirmed the death of a fellow sailor in January or February 1962 and that the Veteran was a fellow crew member at the time. As noted by the Board in the October 2012 remand, the claims file includes favorable evidence in support of the claim for service connection for an acquired psychiatric disorder. Specifically, the STRs show that the Veteran went AWOL in 1964; a hospital's August 1964 reference to a note from the Veteran's family physician (actual note not in the claims file) indicating that the Veteran possibly had schizophrenia or emotional instability with suicidal tendencies secondary to polio-induced cerebral damage at age 4; a September 1964 diagnosis of severe, emotionally unstable personality; post-service treatment records showing treatment for variously diagnosed psychiatric disabilities; and an opinion indicating that the Veteran's major depression dates back to service and has been exacerbated by his intense arthritic pain. (This opinion includes no rationale or discussion of pertinent medical records.) A September 2006 VA examination report that includes a diagnosis of PTSD based on an in-service stressor (the death of his friend), and an October 2010 diagnosis of PTSD, apparently based on the Veteran's reports of being scared during service at the time of the Cuban missile crisis. (The Board notes that the evidence of record includes articles regarding the Cuban crisis which do not corroborate that the Veteran's ship was going to Cuba during the crisis as alleged by the Veteran. Nor is his ship listed as one participating in the crisis in another article.) However, as noted above, it is conceded that a fellow soldier hung himself when the Veteran was a crewmember. The Veteran later testified in support of his claim in June 2011. He said that he was friends with the sailor who hung himself and that he and another sailor were the first on the scene. The fellow service member's death upset him to a significant degree. (Hrg. tr. at page 18.) When examined by VA in May 2013, the claims file was reviewed. The Veteran's medical history was reported in detail, to include that he exhibited psychiatric symptoms prior to service. While the examiner noted that the Veteran had been diagnosed with PTSD, depressive disorder, and a personality disorder, and possible attention deficit hyperactivity disorder (ADHD) most recently in April 2013, it was his opinion that the current diagnoses were depressive disorder, not otherwise specified (NOS), and personality disorder, NOS, cluster B, narcissistic and anti-social traits. The examiner added that there was no evidence that the Veteran had depressive disorder during service, and that it was less likely as not that such was related to or manifested while in service. A lack of continuity of symptoms after service was also noted. The Veteran's personality disorder was present in service and was the basis for his administrative discharge. PTSD was not diagnosed. While acknowledging that PTSD had been diagnosed in the past, the VA physician noted that those examiners did not have the benefit of access to all information in the claims file. Therefore, their diagnoses were based on the Veteran's self-reports which had changed over time. With regard to the claim for service connection for an acquired psychiatric disorder, in light of the conceded stressor involving the death of a fellow sailor, and the September 2006 VA examination report reflecting a diagnosis of PTSD based on that verified stressor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran has PTSD that was incurred in service and, based thereon, the Board will grant service connection for PTSD. See 38 U.S.C.A. § 5107(b) (2012). The Veteran was also again diagnosed with PTSD in October 2010. Thus, in this case, the record presents a valid diagnosis of PTSD related to stressful experiences the appellant reported he underwent during his tour-of-duty. Accordingly, after careful review of all the evidence of record, the Board finds that the appellant manifests PTSD that is the result of stressors he experienced during service. The Board therefore concludes that the evidence is at least in equipoise and that service connection for a psychiatric disability, diagnosed as PTSD, is warranted. The Board has additionally considered whether service connection is warranted for any other diagnosed psychiatric disorders but as noted previously, the record reflects that the Veteran did not have depression in service or continually thereafter, this evidence was the result of the negative opinion in May 2013, and there is no medical opinion that contradicts this opinion. Regarding medical findings of a personality disorder, it is noted that personality disorders are not considered disease or injuries for compensation purposes. See 38 C.F.R. § 3.303(c) (2012). In summary, having resolved doubt in favor of the Veteran, the Board finds that service connection is solely warranted for PTSD. Disability Manifested by Painful Joints, Claimed as Rheumatoid Arthritis Favorable evidence in support of the claim for service connection for painful joints, claimed as rheumatoid arthritis is of record. For example: a June 1963 report of childhood arthritis in the left knee (Veteran provided this medical history on his second enlistment examination); a September 1963 clinical note reflecting in-service treatment for periodically swollen and sore feet and toes and a diagnosis of questionable arthritis; a letter from W.H. indicating that, in 1964, she accompanied the Veteran to his family doctor's office, where he received a "gold shot" in his left knee for what the doctor purportedly said was rheumatoid arthritis; the Veteran's statements describing continuity of joint pain since service; post-service medical evidence confirming treatment for joint pain, variously diagnosed; and a VA examiner's November 2004 opinion relating the joint pain to the Veteran's active duty. It was noted in the Board's October 2012 remand decision that the VA examiner's November 2004 opinion included no rationale or discussion of pertinent medical records and instead focuses on whether the Veteran actually has rheumatoid arthritis, or joint pain due to seronegative spondyloarthropathy, reactive arthritis, or migratory polyarthropathy. While the record was clear that the Veteran had joint pain, which reportedly first manifested in childhood, however diagnosed, an opinion was needed regarding whether and why any current disorder manifested by such pain is related to the Veteran's active service. The requested VA examination was conducted in May 2013. The claims file was reviewed by the examiner. Following evaluation, the diagnoses were reactive arthritis or seronegative spondyloarthropathy. It was further noted that these conditions were confirmed by the extensive medical notes by the Veteran's primary care physician. The VA examiner pointed out that reactive arthritis or seronegative spondyloarthropathy was less likely than not related to, caused by, or aggravated by service. Nor did it have its onset during the Veteran's active service. His left knee and toe conditions were more likely than not due to self-limited injuries as a child and then his duties in service. There were no residuals from these conditions based on the medical records. Reactive arthritis and seronegative spondyloarthropathy were not diagnosed in service, and are considered autoimmune conditions that have specific criteria for diagnoses. The evidence shows that these diagnoses were not made until after service, and that these conditions are due to genetic predispositions and post infectious components. The Board finds that because it is based on consideration of the entire record and includes a better explanation or rationale, the May 2013 VA examiner's opinion is the most probative evidence of record regarding this claim. The opinion describes the Veteran's arthritic disability in detail, and his opinion is based on accurate medical history. It is supportive of the conclusion that the Veteran's sore feet and toes did not result in chronic residuals, and that the diagnoses of reactive arthritis or seronegative spondyloarthropathy were not rendered until many years after service. Moreover, it was explained that these conditions were autoimmune in nature and due to genetic predisposition as corroborated by the private records in the claims file. Although the Board finds that the presumption of soundness was not rebutted in this case because this opinion does not constitute clear and unmistakable evidence that the Veteran's reactive arthritis or seronegative spondyloarthropathy preexisted service and was not aggravated during service, on the question of direct service connection, instead of providing a link to service, the opinion does not find that the relevant in-service complaints and treatment represented the early diagnosis or onset of the disease. In this regard, it is noted that it is the Board's responsibility to weigh the credibility and probative value of all of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Accordingly, the Board has accorded greater evidentiary weight to the VA examiner who reviewed the record, to include positive statements of record as summarized above, and concluded that the Veteran's joint pains were not of service origin. The Veteran's own statements relating his arthritis condition to service are limited in their probative evidence with respect to the issues of nexus and continuity of symptoms. Such etiological linkage is a complex medical question beyond the scope of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, (Fed. Cir. 2009). As is noted above, the VA explained that the Veteran's currently diagnosed joint disorders are unrelated to active service, to include any incident therein. Accordingly, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current reactive arthritis or seronegative spondyloarthropathy and his service, and therefore against his claim. Hence, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. ORDER Entitlement to service connection for PTSD is granted. Entitlement to service connection for a disability manifested by painful joints, claimed as rheumatoid arthritis, is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs