Citation Nr: 1337269 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-18 611A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disability other than PTSD. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for degenerative changes of the lumbar spine. 5. Entitlement to service connection for a left hand disability to include frostbite residuals. 6. Entitlement to service connection for a right hand disability to include frostbite residuals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran had active service from July 1950 to September 1954. He has been awarded a Combat Infantryman's Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran was afforded videoconference hearings before the undersigned Veterans' Law Judge in March 2013 and September 2013. Transcripts of those hearings are of record. The Board notes that although the Veteran initially filed claims for service connection for frostbite residuals of the hands and PTSD, the Board has restyled the issues to include any potentially relevant bilateral hand and psychiatric claims raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A diagnosis of PTSD is not shown by the record. 2. A psychiatric disability other than PTSD to include dementia was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. 3. A cervical spine disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. Arthritis was first demonstrated years post-service. 4. A lumbar spine disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. Arthritis was first demonstrated years post-service. 5. A left hand disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. 6. A right hand disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.304(f) (2013). 2. The criteria for service connection for a psychiatric disability other than PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 3. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 5. The criteria for service connection for a left hand disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 6. The criteria for service connection for a right hand disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in May 2010 and January 2011, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains available service treatment records and VA medical records. The Board notes that some of the Veteran's service records have been deemed fire damaged. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because of the fire damaged records, the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board also notes that while the Veteran's representative indicated in the March 2013 hearing that the Veteran was treated in the 1980s for his neck and back. He did not provide any information that would permit VA to obtain such records. Rather, he indicated that those records could not be obtained. As such, a remand for the purpose of obtaining the above records would be futile in light of indication that they cannot be obtained. Additionally, during the Board hearings that have been conducted, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.303(c). Lastly, the Board recognizes that the Veteran has not been afforded a VA examination in relation to the service connection claims for the neck, back and hands. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) In this case, the evidence does not indicate that the Veteran's disabilities are attributable to service such as to require an examination, even under the low threshold of McLendon. As such, a VA examination is not warranted to address the issues for service connection decided therein. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There are particular requirements for establishing PTSD in accordance with 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). In order to warrant service connection for PTSD there must be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Initially, the Board finds against the claim of entitlement to service connection for PTSD. In this regard, service treatment records are negative for any psychiatric complaints and/or diagnoses. At separation, the Veteran denied that he had or ever had depression or excessive worry, frequent or terrifying nightmares and/or nervous trouble of any sort. He was also found psychiatrically normal at that time. Post service treatment records reveal a negative screening for PTSD in July 2010. During the February 2011 VA examination, the VA examiner diagnosed dementia. He found that there was insufficient evidence to justify a diagnosis of PTSD based on the symptom pattern, clinical portrait and psychiatric history that the Veteran presented. He further stated that it appeared that the Veteran has not had any significant psychiatric difficulties at any time in his life that have provided him with any major impediments to social, emotional/psychological or occupational adaptability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21Vet. App. 319 (2007)(finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). Likewise, the Federal Circuit has noted that in order for a Veteran to qualify for entitlement to compensation under the relevant statutes, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez- Benitez v. Principi, 259 F.3d 1356 (2001). Implicit in the claim is the Veteran's belief that he has PTSD. The Board has considered the Veteran's sincerely held belief that he has PTSD. As a lay person, he is competent to report on that which he has personal knowledge, i.e. nightmares, depression, etc. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). He has not, however, established his competence to establish the existence of PTSD and he has not provided adequate lay evidence that would suggest the existence of PTSD. The question of whether there is a disability to account for his complaints goes beyond a simple and immediately observable cause-and-effect relationship and requires interpretation of clinical findings. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In sum, the evidence is devoid of a showing that the Veteran has PTSD and/or has PTSD at anytime during this appeal. As discussed above, a threshold requirement for the granting of service connection is evidence of a current disability. The Board is mindful that the Veteran engaged in combat with the enemy but in the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim for service connection for PTSD must be denied. The Board also finds against service connection for a psychiatric disability other than PTSD. In this regard, service treatment records are negative for any psychiatric complaints and/or diagnoses. At separation, the Veteran denied that he had or ever had depression or excessive worry, frequent or terrifying nightmares and/or nervous trouble of any sort. He was also found psychiatrically normal at that time. During the February 2011 VA examination, the Veteran was diagnosed with dementia of mild intensity secondary to age related issues (not service connected). The claims folder does not contain any competent evidence relating the Veteran's dementia to service, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. The Board has reviewed all available service treatment records, all VA medical records of file and private treatment records. These records do not include any opinion linking the Veteran's disability to service. Rather, his dementia has been deemed age related. Accordingly, the claim for service connection for a psychiatric disability other than PTSD must also be denied. Lastly, the Board finds against the claims for service connection for cervical spine, lumbar spine and bilateral hand disabilities. To that end, the Veteran contends that he was treated for frostbite of his hands during service. During his time in Korea, he stated that he often slept on the cold or frozen ground or in bunkers. The conditions caused him great discomfort and pain which have carried through the rest of his life he stated. According to the Veteran, he started to have neck pain in the 1960s, and that his neck and hands continue to bother him. He claims his back problems started in service and have continued since then. Service treatment records are negative for complaints, symptoms, findings, and/ or diagnoses for the cervical spine, lumber spine and/or hands. At separation, the spine/other musculoskeletal, neck and upper extremities were clinically normal. At that time, he denied a history of swollen or painful joints, and/or arthritis. Arthritis is also not shown within a year of separation for service. Post-service medical evidence reflects that in December 1991 the Veteran complained of right hand numbness after trying to break up a fight between his daughters. He expressed that his symptoms went away but that his left hand felt cold to him. Degenerative disc disease was diagnosed in February 1992. At that time, a history of arthritis since 1984 was reported. He complained of neck pain and right upper extremity numbness in 1993. In examinations in 1993 and 1994, the Veteran attributed his neck pain and right arm/hand numbness to a February 1993 motor vehicle accident. In a treatment record received in September 1995, he reported cold tolerance and aches since his car accident in 1993. A review of the record discloses that the Veteran's disabilities manifested at least two decades post service. Even if the Board accepts that the Veteran's neck problems started in the 1960s and that he was diagnosed with arthritis in the 1980s, the Veteran's diagnosis is more than 25 years after separation and his neck complaints started years post service. Complaints regarding the hands also are not shown in the record until the 1990s which is more than 35 years after separation. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has reviewed all service treatment records, VA medical records and private treatment records of file. These records do not include any opinion linking the Veteran's disabilities to service. There is no competent evidence or opinion that the Veteran's cervical spine, lumbar spine and/or hand disabilities are related to his military service and neither the Veteran nor his representative has presented any such opinion. It is indicated in the record that the Veteran was diagnosed with arthritis of the neck in the 1980s and that the provider stated that the Veteran's "experience in Korea definitely could have been caused by the cold." The Veteran has not submitted this opinion and has indicated that it is not available. As such, the Board is unable to determine the qualifications of the "provider" and what medical records were reviewed in reaching the opinion. Also, the Board notes that the use of the words "could have" renders any opinion speculative at best. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion that a particular event "may" have led to the Veteran's disability is too speculative to establish a causal relationship). For the reasons stated, the opinion has diminished probative value. Significantly, the available service treatment records do contain a separation physical examination. All pertinent systems, including the spine and the extremities were evaluated as normal. There was no history provided concerning treatment for frostbite of the hands during service, and as noted, there were normal to evaluation at separation. Furthermore, during several examinations conducted between 1993 and 1995, the Veteran attributed his neck and hand symptoms to a motor vehicle accident in February 1993. While a history of cold intolerance was noted in June 1995, it was also noted that he was a mechanic. He did not mention a service onset during any of these examinations. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. The Board also notes that he has rendered inconsistent statements. To that end, in his VA Form 9 the Veteran expressed that he was treated for frostbite of both hands during service. In his hearing, the Veteran's representative also stated that the Veteran related to him that he had field treatment on several different occasions. When questioned during the hearing, however, the Veteran stated that he was not treated in service. The Veteran has provided inconsistent statements regarding whether or not he was treated in service. His inconsistent statements go against his credibility and make him an unreliable historian. In sum, the most probative evidence of record is devoid of a showing that the Veteran's neck, lumbar spine and/or bilateral hand disabilities are related to service. While apparently some service treatment records are missing, those that are found, including the separation examination, reveal no pertinent complaints, findings, or abnormalities. The pathology currently at issue manifested many years after service, and is not shown by probative evidence to be related thereto. Hence, entitlement to service connection is denied. In making this decision the Board considered the fact that the Veteran is a combat veteran. Under 38 U.S.C.A. § 1154(b), combat veterans are entitled to certain presumptions for direct service connection. While the Veteran has described participation in combat during service and the demands placed on him during service to include cold exposure, his lay report addressing the demands of combat standing alone is not evidence to allow a reasonable fact finder to conclude that his disabilities were directly incurred in-service. Simply put, his lay report addressing the demands of combat standing alone is not evidence to allow a reasonable fact finder to conclude that his disabilities were directly incurred in-service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, arthritis of the neck and lumbar spine, and a bilateral hand disability to include carpal tunnel syndrome and neurological complaints, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Finally, in reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is denied. Service connection for a psychiatric disability other than PTSD is denied. Service connection a cervical spine disability is denied. Service connection for a lumbar spine disability is denied. Service connection for residuals of frostbite of the left hand is denied. Service connection for residuals of frostbite of the right hand is denied. ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs