Citation Nr: 1334451	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-10 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan



THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for a psychiatric disorder.

3.  Entitlement to service connection for a skin disorder, claimed as foot fungus.



ATTORNEY FOR THE BOARD

Siobhan Brogdon, Counsel



INTRODUCTION

The Veteran served on active duty from March 1987 to March 1989.  This matter comes before the Department of Veterans Affairs (VA) Board of 
Veterans Appeals (Board) from rating decisions of the VA Regional Office (RO) in Detroit, Michigan.

The case was remanded for further development in September 2012.  A Board remand confers upon the Appellant the right to compliance with that order.  Stegall v. West, 11 Vet.App. 268, 271 (1998).  Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet.App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  The Board finds that there has been substantial compliance with the September 2012 Board remand that requested the following development: the Veteran's Army Reserve records from the U.S. Army Reserve Center or any other pertinent source.  The requests to obtain the records were fully documented and negative replies were received from the National Personnel Records Center and VA regional offices.  Duplicate Reserve records were received from the Department of the Army, U. S. Army Reserves Personnel Center in April 2013.  Accordingly, the Board finds that there has been substantial compliance with the December 2012 remand.

Following review of the record, the issue of entitlement to service connection for a skin disorder of the feet, claimed as foot fungus, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  Hypertension was first clinically manifested many years after discharge from active duty and is unrelated to service.  

2.  A psychiatric disorder was first clinically manifested many years after discharge from active duty and is unrelated to service.


CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013).

2.  A psychiatric disorder was not incurred in or aggravated by service, nor may a psychosis be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance regarding the Veteran's claims.  There is no issue as to providing an appropriate application form or the completeness of the application.  VA notified the Veteran in September 2008, and thereafter of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  

VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, including by obtaining private records, VA medical records, Social Security Administration records, and service treatment records (STRs).  VA's duty to assist also includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79, 83-86 (2006).  In the instant case, the Veteran was not afforded examinations in connection with these claims; he was afforded examinations for pension purposes.  Here, as is discussed further below, the evidence does not establish any in-service event or symptoms.  As such, no VA examinations are necessary.  The Board finds 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).  As such, the claims are ready to be considered on the merits.

Pertinent Law and Regulations 

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; 38 C.F.R. § 3.303.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be 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.  38 C.F.R. § 3.303 (2013).

Certain chronic diseases, to include hypertension and/or a psychosis, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). 
 
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving the shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013).

Factual Background

The Veteran's service treatment records (STRs) reflect that blood pressure was taken on a number of occasions and no significantly elevated readings were recorded.  Blood pressure readings of 130/70 and 112/82 were obtained in January 1989, less than two months before separation in March 1989.  No complaints, findings or references pertaining to psychiatric status are demonstrated.  

February 1998 records from McLaren Regional Medical Center reflect that the Veteran was brought in by his parents for exhibiting bizarre behavior, paranoid delusions and agitation.  A physical examination was performed that showed a blood pressure of 130/85.  Following evaluation, the impressions were rule out paranoid schizophrenia, and rule out bipolar affective disorder, manic type.  The Veteran was admitted to McLaren in May 1998 for symptoms of acute psychosis characterized as acute exacerbation of schizophrenia.  It was noted that he had been hospitalized for a similar psychosis about six months before.  A strong family history of psychiatric illness, including in his mother, was reported.  On discharge, the principal diagnosis was schizoaffective disorder.  Hypertension was listed as another diagnosis.  The Veteran was readmitted to McLaren in August 1998 with a diagnosis of psychotic episode, manic state.  It was recorded that he was prescribed Vasotec to control his previously diagnosed hypertension.  The final diagnoses were bipolar disorder and known hypertension.

January 1999 records show a medical history of hypertension and bipolar disorder.  On physical examination, a blood pressure reading of 143/81 was obtained characterized as borderline blood pressure.  

Subsequent private and VA clinical records reflect continuing treatment for psychiatric disabilities variously diagnosed as bipolar disorder, schizoaffective disorder, and paranoid schizophrenia.  The Veteran was also received monitoring and medication management for hypertension.

A June 2008 VA general medical examination for pension purposes was provided.  The Veteran stated that he had had problems with hypertension since 2003 and took medication to control his blood pressure.  On examination, his blood pressure readings were taken three times and disclosed readings of 178/120, 149/110 and 141/90.  Following examination, the diagnoses included hypertension.

The Veteran underwent a VA mental disorder examination in June 2008 for compensation purposes.  The examiner indicated that claims folder was reviewed.  The appellant reported that problems with mood swings, paranoia, and auditory and visual hallucinations, etc., began in 1997.  He denied psychiatric symptoms during service.  Following evaluation, a diagnosis of bipolar disorder, mixed type, was rendered.  The psychiatric summary noted that the appellant had no problems while he was growing up or in service, and that he began to have psychiatric symptomatology in 1997. 

Legal Analysis

1.  Service connection for hypertension

The Board finds that the evidence of record does not support a finding of service connection for hypertension.  First, there is a current disability as the evidence of record demonstrates a diagnosis of hypertension.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  Second, there is no evidence of an in-service event, disease, or injury.  See 38 C.F.R. § 3.303(a). The STRs are negative for high blood pressure, and the Veteran has not testified that his hypertension was diagnosed during service.  See Shedden, 381 F.3d at 1167; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  Additionally, hypertension was not diagnosed within a year of service discharge as it was diagnosed in 1998.  38 C.F.R. §§ 3.307, 3.309.

Finally, the evidence of record does not demonstrate a relationship between service and the currently diagnosed hypertension.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  The Veteran has provided testimony that his hypertension is related to service.  The Board does not find this testimony competent. Although a lay witness is competent to report to factual matters of which he or she has first-hand knowledge, Washington, 19 Vet. App. at 368, the diagnosis and relationship of hypertension to service is not lay observable.  It is distinguished from scars, varicose veins, or tinnitus all of which may be observed by sight or sound.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). Therefore, while the Veteran may attribute the onset of hypertension to service, he does not have the requisite medical training to provide a competent or probative opinion as to the disability began, especially in view of the clinical findings to the contrary during active duty.  The other evidence of record does not demonstrate that hypertension is related to service.  Hypertension was not diagnosed until 1998, almost a decade after the Veteran's discharge from active duty.  In view of such, service connection for the hypertension is not warranted on a direct or presumptive basis. 


2.  Service connection for a psychiatric disorder

In statements dated in September and October 2008, the Veteran contends that he may have gotten mental illness from military training or from [unspecified] chemicals he may have been exposed to in service.

The Veteran's STRs do not refer to any psychiatric complaints, treatment or findings.  Post service, there is no evidence of treatment for a psychiatric disorder until 1998, almost a decade after discharge from active duty.  Here, the available evidence first indicates treatment for a psychosis in 1998, almost 10 years after discharge from active duty.  The other evidence in the record does not indicate that the Veteran has a psychiatric disorder due to service.  

The Board has carefully considered the Veteran's lay account attributing psychiatric disability to service, including exposure to chemicals therein.  Lay assertions may serve to establish a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.309(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Veteran is competent to report the onset and existence of psychiatric symptoms; but not to provide an etiological opinion on such as that is a highly complex psychiatric finding that requires specialized training.  Additionally, on VA examination in 2008, the Veteran clearly denied having any psychiatric or emotional symptoms during service.  Therefore, with respect to his lay assertions that he now has psychiatric disability related to service, the Veteran is not competent. With respect to the onset of symptoms, the Veteran is not credible as his current statements are inconsistent with the clinical evidence in the record.  

For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim and service connection for a psychiatric disorder must be denied.  38 U.S.C.A. §§ 1131, 5107(b).


ORDER

Service connection for a psychiatric disorder is denied. 

Service connection for hypertension is denied.


REMAND

VA's duty to assist also includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet.App. 79, 83-86 (2006).

The Veteran's STRs reflect that he was seen in December 1988 for a small entrance wound on the medial aspect of the left heel.  In January 1989, it was noted that he had an old hypertrophic healed and nontender ulcer that had resolved.  In an August 2006 submission, the Veteran stated that he believed he developed the disorder from severe heat while training in the desert.  He related that he had problems with shedding skin between the toes that started in the desert that had continued since that time.  In correspondence received in July 2009 and in August 2013, the Veteran wrote that he had had problems with his feet since training in service.  He stated that he sought treatment numerous times during service for foot symptoms that had continued until the present despite creams and powders.

In view of such, a current VA skin examination is warranted as to the claim of entitlement to service connection for claimed foot fungus.

Additionally, review of the record reflects that the Veteran received continuing treatment from VA in the past.  The most recent clinical records date through March 16, 2009.  Ensuing records may disclose treatment for skin disability of the feet.  As VA has constructive possession of any subsequent records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet.App. 611 (1992).  Therefore, records dating from March 17, 2009 to the present should be requested and associated with the claims folder.  The Veteran should also be requested to provide authorization identifying any other health care provider who has treated him for skin disease of the feet or foot fungus.  The RO/AMC should thereafter secure these records.

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran and request that he furnish authorization that identifies all healthcare providers who have treated him for a skin disorder, to include foot fungus.  VA should request this clinical evidence and associate it with the claims folder.

2.  Obtain and associate with the claims file VA records dating from March 17, 2009 to the present.  

3.  After any additional records have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner.  The claims folder, and access to Virtual VA must be made available to the physician.  The examiner must indicate whether the claims folder and Virtual VA are reviewed.  All indicated tests and studies should be performed and clinical findings must be reported in detail.  The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc.  The examiner must provide supporting explanation for all opinions and conclusions. 

Based on a thorough review of the evidence of record and the physical examination findings, the examiner must provide the following opinions:

a) is there a skin disability, either based upon the examination, and/or the Veteran's lay statements;

b) if there is a skin disorder, whether it is at least as likely as not (i.e., probability of 50 percent or better) that it had its onset during service or is otherwise related to service. 

4.  The RO must ensure that the medical report requested above complies with this remand and its instructions.  If the report is insufficient or if a requested action is not taken or is deficient, it must be returned for correction.  

5.  After taking any further development deemed appropriate, readjudicate the remaining issue on appeal.  If the benefit sought is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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).



____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs