Citation Nr: 1335744 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-14 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for depression. 2. Entitlement to a rating in excess of 10 percent for status-post osteomyelitis of the pubic bone with degenerative joint disease and impaired gait stance. 3. Entitlement to service connection for a left hand disorder (claimed as arthritis). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to April 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the depression and osteomyelitis disability claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. As an additional matter, the Board notes that the Veteran contended in an April 2013 statement that he was submitting a claim of service connection for posttraumatic stress disorder (PTSD) based upon in-service sexual trauma. However, the record available for the Board's review does not reflect this claim has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the competent medical and other evidence of record is against a finding the Veteran currently a chronic left hand disorder, to include arthritis, that was incurred in or otherwise the result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for a left hand disorder, to include arthritis, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under the law, VA is required to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in October 2008, which is clearly prior to the March 2009 rating decision that is the subject of this appeal. This letter, in pertinent part, informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information used by VA to determine disability rating(s) and effective date(s). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding the left hand claim. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence indicating he has a current left hand disorder as a result of his active service. As part of his Substantive Appeal, he indicated that no hearing is desired in conjunction with this case. Moreover, he was provided a VA medical examination in December 2008 which included an opinion that addressed the nature and etiology of the current left hand disorder. As this opinion was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds it is supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the December 2008 VA examination, and the Veteran has not otherwise identified any prejudice therein. Accordingly, the Board finds that this examination is adequate for resolution of this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether a claimant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and the claimant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic diseases such as arthritis that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran essentially contends that he has arthritis of the left hand as a result of an in-service injury. He maintains that he had no problems with the left hand prior to service, and has had recurrent symptomatology since service. The Board acknowledges that the Veteran is competent to describe a left hand injury, as well as visible symptomatology such as pain. However, the issue of whether such symptoms represent a chronic as opposed to acute condition, and if such symptoms are all due to the same condition, requires competent medical evidence to resolve. This finding is consistent with the fact the Court has previously held that pain, alone, without a diagnosed or identifiable underlying condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part, appeal dismissed in part sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (Dismissing challenge to the issue whether pain, alone, can be considered a disability). Moreover, the Veteran is contending he has arthritis of the left hand, which is an internal condition that requires specific medical testing such as X-rays to diagnose. Consequently, the Board concludes that competent medical evidence is required to determine the nature and etiology of the Veteran's left hand claim. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Veteran did not indicate any impairment of his hands as part of a January 1974 Report of Medical History completed in conjunction with his enlistment examination, and no such impairment was noted on the enlistment examination itself. He was treated for gout while on active duty. Further, he was treated for left hand complaints in April and May 1975. Specifically, he complaints of pain in the left index finger in April 1975, and reported that he was injured 2 1/2 weeks earlier. He was found to have tenderness of the first (1st) metacarpophalangeal joint of the left hand. However, there was no edema, effusion, and he had good range of motion. X-rays of the hands revealed no significant abnormalities identified. Moreover, there was no indication of any such impairment on the July 1976 expiration of term of service examination, nor did he identify any such impairment on the concurrent Report of Medical History. Additionally, there was no indication of left hand impairment on a June 1988 VA medical examination. In fact, the first indication of left hand impairment in the post-service medical records was years after service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without 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 a disease was incurred in service which resulted in any chronic or persistent disability.). Further, the fact the disability first developed years after service reflects he is not entitled to a grant of service connection pursuant to the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309(a). No other presumptive provision appears applicable to this case. The Board also observes that the Veteran has submitted various claims for VA benefits since 1985. As such, it reflects he was aware of the fact he could receive benefits from VA due to a disability incurred in service, and how to make a claim for such benefits. However, he did not make a claim of service connection for the left hand until 2008. If he did have recurrent symptoms since service as he now contends, it would appear only logical that he would have made a claim prior to this time. This, as well as the fact there was no competent medical evidence of the current left hand disorder until years after service, calls into question the Veteran's reliability as a historian of this disability. As such, if further supports the need for competent medical evidence to determine the nature and etiology of the current left hand disorder. In this case, no competent medical evidence is of record which relates the etiology of the Veteran's current left hand disorder to his active service. Rather, the December 2008 VA examiner provided an opinion against such a finding. Specifically, the VA examiner opined that the left hand condition (no evidence of arthritis) is not likely related to his treatment received in service for gout, and that it was more likely related to his hepatitis C infection. The examiner referenced various in-service and post-service findings in the medical records, as well as the findings of the examination itself, in support of this opinion. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the December 2008 VA examiner is presumed to be qualified to render a competent medical opinion. The examiner was aware of the Veteran's relevant medical history based upon review of the VA claims folder, and referenced relevant documents therein as part of the examination report. The examiner's opinion was not expressed in speculative or equivocal language, and was supported by stated rationale based upon the competent medical findings regarding the nature of the current disability and documented in-service findings pertinent to the left hand. Therefore, the Board finds this opinion to be persuasive and entitled to significant probative value in the adjudication of the current claim. Moreover, the Board reiterates there is no competent medical evidence which refutes or opposes the findings of this VA examiner. The Board also notes that to the extent the December 2008 VA examiner attributed the current left hand disorder to hepatitis C, that service connection is not in effect for hepatitis. In fact, service connection was denied for hepatitis C by a November 2002 rating decision. The law does not provide for the establishment of service connection for a disability due to another nonservice-connected disability. Nothing in the record otherwise indicates that the provisions of 38 C.F.R. § 3.310 are applicable to this case. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran currently a chronic left hand disorder, to include arthritis, that was incurred in or otherwise the result of his active service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. ORDER Entitlement to service connection for a left hand disorder (claimed as arthritis) is denied. REMAND The Veteran was provided VA medical examinations in December 2008 which evaluated the Veteran's service-connected depression and osteomyelitis disabilities. However, as it has been almost 5 years since this examination, the Board is concerned the evidence of record may not accurately reflect the current severity of the service-connected depression and osteomyelitis disabilities. Further, the Veteran, via a statement submitted by his accredited representative in September 2013, asserted that these disabilities have increased in severity since the most recent examination. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993). Consequently, the Board concludes that contemporaneous VA examinations are needed in order to make an informed decision regarding the Veteran's current level of functional impairment and adequately evaluate his current level of disability for both his service-connected service-connected depression and osteomyelitis disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (Where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that a new examination is necessary, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board further finds that any outstanding treatment records regarding the service-connected depression and osteomyelitis disability should be obtained while this case is on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected depression and osteomyelitis disability since December 2008. After securing any necessary release, the AMC/RO should obtain those records not on file. If any private records are identified, and a release obtained, the RO must make two attempts to obtain those records unless the first attempt reveals that further attempts would be futile. If no records are obtained, after being identified, the RO must inform the Veteran (1) what records were not obtained, (2) what steps were taken to obtain them and (3) that the claim will be adjudicated based on the evidence available, but that if those records are later obtained the claim may be re-adjudicated. 3. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected depression. The claims should be made available to the examiner in conjunction with the examination. All necessary testing should be completed. The examiner should report the findings in accordance with VA rating criteria including determining a Global Assessment of Functioning (GAF) score. 4. Schedule the Veteran for an examination to determine the current nature and severity of his osteomyelitis of the pubic bone. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be completed. The examiner should report his findings in accordance with VA rating criteria including determining any limitation of motion and any functional limitation caused by pain, weakness, fatigability, incoordination, etc. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 5. The Veteran is notified that he must report for any examination scheduled and the failure to report for an examination may result in the claim being denied. 38 C.F.R. § 3.655 (2013). 6. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. If any benefit remains denied, the AMC/RO should issue an SSOC and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs