Citation Nr: 1339896 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-19 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Whether the severance of service connection for generalized anxiety disorder, claimed as posttraumatic stress disorder (PTSD), was proper. 3. Entitlement to an initial compensable rating for generalized anxiety disorder, claimed as PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 Rating Decision and a May 2012 Rating Decision, both by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The April 2010 Rating Decision denied the Veteran's claim for service connection for a low back disorder and granted the Veteran's claim for generalized anxiety disorder, claimed as PTSD, and assigned it a 0 percent rating, effective April 29, 2009. In May 2010, the Veteran filed a Notice of Disagreement. In February 2012, the RO made a formal finding of a lack of information to corroborate a stressor in connection to the PTSD claim, despite having previously recharacterized the Veteran's psychiatric disability as generalized anxiety disorder in its earlier Rating Decision. Then, after following the proper procedure for severing service connection, the RO issued a May 2012 Rating Decision that severed service connection for the Veteran's generalized anxiety disorder based on the February 2012 finding of a lack of information to corroborate a stressor in connection to a PTSD claim. The RO then issued the Veteran a Statement of the Case in June 2012. In the Statement of the Case, the RO reaffirmed its denial of the Veteran's claim for service connection for a low back disorder. It also recharacterized the second claim as a claim for an initial compensable rating for generalized anxiety disorder for the period of time for which it had been granted service connection, namely, April 29, 2009 to August 1, 2012, and denied that claim as well. The Veteran filed a timely substantive appeal, Form 9, in July 2012. Upon a review of the record, the Board finds that the Veteran's statements on his July 2012 Form 9 constituted a timely and adequate Notice of Disagreement with the May 2012 Rating Decision that severed the Veteran's service connection for his generalized anxiety disorder. See 38 .C.F.R. § 20.201 ("A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement.") Because the Veteran stated on his Form 9 that the examination seemed "right" to him, the Board will construe this statement to mean that the Veteran implicitly agreed with the determination made by the March 2010 VA examiner, who provided a positive nexus opinion for the Veteran's generalized anxiety disorder, and therefore disagreed with the RO's decision to sever service connection. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. There is no paperless, electronic VBMS claims file associated with the Veteran's claim. The issues of entitlement to an initial compensable rating for generalized anxiety disorder and whether the severance of service connection for generalized anxiety disorder was proper are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is no competent and credible evidence establishing that the Veteran currently has a low back disability. CONCLUSION OF LAW The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013) . REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Prinicipi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this appeal, in a May 2009 pre-rating letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The May 2009 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The April 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the May 2009 letter meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment records, service personnel records, VA treatment records, and the Veteran's statements. The Board recognizes that the Veteran has not been afforded a VA examination in this case. However, the record does not contain competent evidence showing that the Veteran had a low back disability or manifestations of a low back disability in service nor is there an indication that the Veteran currently has a low back disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In consideration of the foregoing, the Board finds that the evidence warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). As post-service medical records provide no basis to grant this claim, as will be explained in greater detail below, the Board finds no basis for the need to obtain a VA examination or medical opinion. The Board also finds that no additional RO action to further develop the record in connection with the claim prior to appellate consideration is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 28 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The Veteran contends that he is entitled to service connection for a low back disorder on the basis that he developed the condition while in service. Service treatment records are negative for any complaints, treatment, or diagnoses of residuals of a low back injury. Service treatment records reflect that at his June 1966 induction examination, the Veteran reported and the examiner found no low back abnormalities. At his August 1968 separation examination, the Veteran made no complaints regarding his low back, and his spine was found to be normal. On the Report of Medical History prepared at that time, he specifically denied a history of recurrent back pain. The Board notes, however, that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Veteran's post-service VA records from October 2007 to May 2012 are negative for complaints of or treatment for any low back problems. Additionally, while the Veteran is competent to describe his symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of a low back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine the diagnosis of musculoskeletal or neurological symptoms arising from back injuries. The Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis or etiology of a low back disability. In any event, the Board concludes that the medical evidence, which reveals no complaints or findings of a low back disability, is of greater probative value than the Veteran's lay contentions. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See U.S.C.A §1110. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In this case, while there is current medical evidence of record dating from 2007 to 2012, none of this evidence reflects findings of a low back disability. Accordingly, in the absence of competent evidence of a current disability during the period of the claim, service connection for a low back disability is not warranted on any basis and must be denied. The Board notes that the RO did not seek a VA medical opinion for the claim for service connection. However, as explained above, there is no evidence of a back injury during service and no competent evidence of a current low back disability. Accordingly, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson 20 Vet. App. 79, 81 (2006); see also Duenas v. Principi 18 Vet. App. 512 (2004). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a low back disability is denied. REMAND In a May 2012 Rating Decision, the RO severed service connection for generalized anxiety disorder based on a previous formal finding of a lack of information required to corroborate stressors in a PTSD claim. The Veteran submitted a statement in his July 2012 Form 9 that indicated he disagreed with the RO's decision to sever his service connection for generalized anxiety disorder. While not explicit, the Veteran stated that he thought the March 2010 VA examination was "right" and asserted that the person who performed the examination "did care one way o[r] the other." Indeed, the underlying rationale for the severance of the Veteran's service-connected generalized anxiety disorder rested upon the lack of information to corroborate a stressor for PTSD, which makes the RO's decision to sever service connection for generalized anxiety disorder inconsistent, as severance was based upon a factor that is not required in order to service connect for generalized anxiety disorder. This statement constitutes a timely Notice of Disagreement with the May 2012 Rating Decision that severed service connection. However, the RO has not issued a Statement of the Case in response to this Notice of Disagreement. Under these circumstances, the Board is required to remand the matter for issuance of a statement of the case addressing the claim for whether the severance of service connection for generalized anxiety disorder was proper. Manlincon v. West, 12 Vet. App. 238 (1999). Finally, the Board finds that the Veteran's claim for an initial compensable rating for generalized anxiety disorder from April 29, 2009 to August 1, 2012 is inextricably intertwined with his claim regarding whether the severance of service connection for generalized anxiety disorder was proper. The determination of whether severance of service connection for generalized anxiety disorder was proper would affect the issue of whether the Veteran is entitled to an increased rating for his generalized anxiety disorder. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with another claim is to remand the other claim pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case in response to the July 2012 Notice of Disagreement regarding the claim for whether the severance of service connection for generalized anxiety disorder was proper. Inform the Veteran of his appeal rights. This issue should only be returned to the Board if a timely substantive appeal is filed. 2. After adjudicating the inextricably intertwined issue of whether severance of service connection for generalized anxiety disorder was proper, and any additional development deemed necessary has been completed to the extent possible, the record should be reviewed and the claims readjudicated. If the benefits sought on appeal are denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs