Citation Nr: 1338912 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-17 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to June 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied the current claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (3). The Board observes that the RO only adjudicated the issue of entitlement to PTSD, and did not address any other psychiatric disorder therein. However, in accord with the holding of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has construed the issue as entitlement to an acquired psychiatric disorder however diagnosed. The Veteran also initiated an appeal to the denial of service connection for cold injury residuals of the lower extremities. However, service connection was established for such disabilities by a June 2012 rating decision. In view of the foregoing, these issues have been resolved and are no longer before the Board for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (Indicating that, where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). For the reasons addressed in the REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's back and acquired psychiatric disorder claims. Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the Veteran's heart disorder claim have been completed. 2. There is no competent evidence of a chronic heart disorder that was incurred in or otherwise caused by active service, or that was manifested to a compensable degree within a year of service discharge. CONCLUSION OF LAW The criteria for service connection for a heart disorder are not met. 38 U.S.C.A. §§ 1110, 1154(a), 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset 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) (2013). 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 May 2009, which is clearly prior to the June 2010 rating decision that is the subject of this appeal. This letter, in pertinent part, informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim 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 has been satisfied regarding the Veteran's claim of service connection for a heart disorder. The Board acknowledges that only the Veteran's June 1953 discharge examination is on file with respect to his service treatment records. Further, as noted by a March 2010 Formal Finding for the record, all other service treatment records, as well as the Veteran's personnel records, are believed to have been destroyed in a fire. The Veteran was notified that his service records were unavailable in letters sent in May 2009, July 2009, and in December 2009. He was also asked to provide any service records in his possession; there was no response to this request. In July 2009, the RO requested that the Veteran complete NA Form 13055, Request for Information Needed to Reconstruct Medical Data. After receiving the completed form from the Veteran, the RO contacted the National Personnel Records Center (NPRC) in December 2009 and requested all available records. In February 2010, NPRC provided a negative response. The Board further notes the Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing indicates he has identified the existence of any relevant evidence regarding his heart disorder that has not been obtained or requested. On his Substantive Appeal, VA Form 9, he indicated that no hearing was desired in this case. A VA medical examination was not accorded to the Veteran in regard to his claim for service connection for a heart disorder. The record contains competent evidence of a current heart disability. The record does not, however, include credible evidence of a pertinent event in service; competent evidence of heart disease in service; competent evidence showing that any current heart disabilities may be linked to active service or a service-connected disability; and no reported continuity of symptomatology; an examination is not necessary. Rather, the Veteran offers only his own conclusory opinion regarding causation. The Veteran's contention that his current heart disorders are related to service, by itself, is not sufficient to warrant a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also, Water v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. 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 that are present to a compensable degree within the first post-service year and includes cardio-vascular renal disease. 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). The Veteran has not contended, nor does the record otherwise indicate, that his current heart disorders are secondary to any other service-connected disability. As such, the provisions of 38 C.F.R. § 3.310 are not for application here. 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). 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). 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). As noted the Veteran's service records are missing. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not 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 Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent 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 the Veteran'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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board acknowledges that the Veteran is currently diagnosed with various heart disorders, which include but are not limited to atrial fibrillation and congestive heart failure. (The Veteran is also diagnosed with hypertension. Service connection for hypertension was denied by a separate, unappealed rating decision issued in February 2011. Therefore, this decision does not address the Veteran's hypertension.). As indicated, only the June 1953 discharge examination is available from the Veteran's service treatment records. His heart was evaluated as clinically normal at his June 1953 discharge examination, and a chest X-ray was negative for any disease or defect. Significantly, the Veteran was assigned "1" in each category on the Physical Profile Serial ("PUHLES"). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PUHLES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of fitness for retention in the military service.). In the NA 13055 completed in August 2009, the Veteran reported that he received treatment for his heart while in service, between July 1952 and August 1952. In a statement received in September 2009, the Veteran reported that after he learned of a fellow service member being shot, he sought treatment for a "spell with his heart' in service. He stated that the medics wanted to keep him, but he refused further evaluation. He also stated that he could not recall any more details of this event. In February 2010, NPRC conducted a search of sick call/morning reports for the Veteran's duty assignment (529th QM Petro Supply Co.) for the period from July 1952 to August 1952; there were no notations of the Veteran having received any treatment. The Board finds that the Veteran's current report of treatment for his heart in service, which is inconsistent with the results of a search of the sick call/morning reports for his unit, reflects unfavorably on strength of his memory and clarity of recall, which calls into question the accuracy and reliability of his testimonial statements overall. See Caluza, 7 Vet. App. at 511. Based on the aforementioned evidence, a chronic heart disability was not affirmatively shown to have been present during a period of active service. 38 C.F.R. § 3.303(a). To the extent that any of the currently diagnosed heart disorders are 'chronic diseases' as defined in 38 C.F.R. § 3.309(a), chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are potentially applicable. However, there is no competent evidence, either contemporaneous with or after service, that symptoms of chronic heart disease were noted during service. Moreover, the Veteran has not asserted continuity of any heart symptoms after service. Service connection may be granted for disability shown after service, when all of the evidence shows that it was incurred in service. 38 C.F.R. § 3.303(d). Although the Veteran contends that his current heart disabilities are related to military service, he has not identified or provided competent lay or medical evidence which supports this contention. The heart is an internal organ and thus impairment of that organ is not something generally subject to lay observation. Simply put, a chronic heart disorder is the type of condition that requires competent medical evidence to diagnose and determine the etiology thereof. Nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to diagnose a chronic heart condition or render a medical opinion concerning the etiology of one. Consequently, his unsupported lay contentions regarding causal nexus cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Here, no competent medical evidence is of record which indicates the Veteran's current heart disorders are etiologically linked to service. As already noted, the Veteran has not been accorded a VA medical examination regarding his heart disorder claim. However, as there is no competent and credible evidence of a chronic heart condition or an acute injury in service; no competent evidence showing that any current heart disabilities may be linked to active service or a service-connected disability; and no reported continuity of symptomatology, an examination is unnecessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, there is no competent evidence of chronic heart disorder having manifested to a compensable degree within a year of service discharge so as to establish service connection on a presumptive basis. 38 C.F.R. § 3.307, 3.309. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a heart disorder is not warranted. ORDER Service connection for a heart disorder is denied. REMAND The Veteran has essentially contended he has PTSD due to various in-service stressors. The record does not reflect the Veteran has been diagnosed with PTSD in accordance with the DSM-IV. However, the VA and private treatment records include findings of depression and dementia. The Veteran was accorded a VA medical examination in March 2012. The examiner specifically found the Veteran did not satisfy the DSM-IV criteria for a diagnosis of PTSD, and provided a diagnosis of 'rule out dementia.' The examination report does not address whether the Veteran's depression and dementia are causally related to his active service or a service-connected disability although they both are noted in the record during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007)(The requirement of a current disability may be met by evidence of the disability at the time of filing or at any point during the pendency of the claim.). As such, this examination is not adequate for resolution of this case. A remand is required in this case to accord the Veteran an adequate examination that addresses the nature and etiology of his current psychiatric disorder, however diagnosed. See Barr v. Nicholson, 21 Vet. App. 303 (2007). With respect to the claimed back disorder, the Veteran reports that his back "went out on him" during basic training and he has had recurrent back pain since service. The Board observes that the Veteran is competent to describe such an injury, as well as symptoms such as pain. Competent medical evidence is necessary to determine whether the Veteran's current back disorder is related to service, particularly as the Veteran's spine was clinically evaluated as normal on his June 1953 discharge examination. Consequently, a remand is required to accord the Veteran an examination for his claimed back disorder. See McLendon, supra. Finally, any outstanding treatment records for the Veteran's current back and psychiatric disorders should be obtained while this case is on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for his psychiatric and back disorders since April 2012. After securing any necessary release, obtain those records not on file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and back symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records, schedule appropriate examinations to address the nature and etiology of the Veteran's current psychiatric and back disorders. The claims folder must be made available to the examiners for review before the examinations. The respective examiners should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric or back disorder found to be present was incurred in or otherwise the result of his active service. A complete rationale for any opinion expressed must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. After completing any additional development deemed necessary, readjudicate the appeal. If any of the benefits sought appeal are not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and provided 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. 2013). ______________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs