Citation Nr: 1340209 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 08-14 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric condition, to include anxiety, depression, and PTSD. 2. Entitlement to service connection for a bilateral hernia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from September 1965 to August 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which reopened the Veteran's claim for service connection for an acquired psychiatric condition, but denied the claim on the merits, and declined to reopen the Veteran's claim for service connection for a bilateral hernia. A Board decision of March 2012 reopened both service connection claims, but remanded both claims for further development. That development has been completed and the matter is ready for consideration by the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that evidence was submitted after the October 2012 supplemental statement of the case (SSOC) including evidence submitted by the Veteran's representative in August 2013. Evidence received after the issuance of the most recent statement of the case or SSOC ordinarily will necessitate a Remand to the RO for consideration. However, in this case, the Veteran representative submitted a statement in October 2012 indicating that if they submitted evidence at a later date, they would waive RO consideration of the case and asking the Board to consider any new evidence and proceed with the adjudication of the appeal. As the Veteran's, through his representative has waived RO consideration of any additional evidence that they submit, the Board will proceed to consider such evidence in its decision. The Board notes that, in addition to the paper claim file, there is a Virtual VA electronic claim file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claim file and the electronic claim file in rendering this decision. FINDINGS OF FACT 1. The weight of the evidence for and the evidence against a finding that the Veteran's acquired psychiatric condition, to include anxiety, depression, and PTSD, is etiologically related to service is in relative equipoise. 2. The weight of the evidence is against a finding that the Veteran has a current bilateral hernia. CONCLUSIONS OF LAW 1. An acquired psychiatric condition, to include anxiety, depression, and PTSD, was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2013). 2. A bilateral hernia was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted in the Introduction, the Board remanded this matter in March 2012. As to the remand for acquired psychiatric condition, to include anxiety, depression, and PTSD, the Board instructed the RO to afford the Veteran the opportunity to provide additional pertinent evidence in support of his claim and to request confirmation regarding whether the Veteran wishes to have a hearing before the Board. The RO was also instructed to obtain all Social Security Administration and outstanding VA treatment records, including those from the Vet Center in Dearborn, Michigan, or notify the Veteran and his representative that these records could not be located or do not exist. A VA medical examination was to be scheduled, and the RO had been instructed to have the examiner identify the nature and etiology of the Veteran's acquired psychiatric condition, to include anxiety, depression, PTSD, and any other psychiatric condition indicated by the record, and render an opinion as to whether it was at least as likely as not (i.e. a 50 percent probability or greater) that any acquired psychiatric condition was casually or etiologically related to the Veteran's active service. As to the remand for bilateral hernia, the RO had been instructed to schedule the Veteran for a VA examination to determine whether the Veteran currently has any bilateral hernia disability, to include any residuals from the Veteran's claimed 1967 herniorraphy, and render an opinion as to whether it was at least as likely as not (i.e. a 50 percent probability or greater) that any bilateral hernia disability was casually or etiologically related to the Veteran's active service. By letter dated in March 2012, the Veteran was informed that he should contact VA if he desired a hearing before the Board. He has not responded. Thus, the Board will assume that he does not desire a hearing and proceed with appellate review. Further, the RO attempted to obtain records from the Vet Center and SSA. Additional medical evidence was received from the Vet Center. The SSA informed VA that records pertaining to the Veteran's claim for disability benefits were not available. The RO prepared a memorandum of unavailiabity of Federal Records and informed the Veteran that these records were not available. The Veteran responded by submitting copies of award letters from the SSA. Finally, in April 2012, examinations were provided addressing the Veteran's claim. In light of the foregoing, the Board concludes that there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in October 2005, the RO notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed his claim prior to the U.S. Court of Appeals for Veterans Claims' 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the October 2005 letter. Instead, in March 2006, the Veteran was provided with additional notice regarding the degree of disability and effective date. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's service treatment records (STRs), VA treatment records, and private treatment records are in the claims folder. While SSA records are not available, the Veteran was informed that the records were not available and provided an opportunity to submit records that he had in his possession pertaining to SSA disability benefits. As previously mentioned, the Board had remanded this matter in March 2012 in part because the VA medical examiners had been unable to render opinions regarding the nature and etiology of the Veteran's acquired psychiatric condition and any nexus to service, and whether the Veteran has any bilateral hernia disability, and any nexus to service. The requested examination was conducted in April 2012. The Board acknowledges the Veteran's contentions in an August 2012 statement that the examiner focused on a medical issue (history of DVT), and found that his psychiatric condition was not service-related; however, the Board observes that the April 2012 examination reports reflected that the examiners reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interviews, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board concludes that VA has satisfied its duties to notify the Veteran of the evidence necessary to substantiate his claims and to assist him in the development of his claims. Legal Criteria In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d) (2013); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to show a 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b) (2013), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a) (2013). Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Acquired psychiatric condition, to include anxiety, depression, and PTSD, and bilateral hernia, are not conditions listed under 38 C.F.R. §3.309(a) (2013). Acquired psychiatric condition The Veteran essentially contends that he has an acquired psychiatric condition as a result of his military service. Service connection for any acquired psychiatric condition requires the presence of a currently diagnosed disability. The evidence shows that the Veteran has a long history of psychiatric problems. A December 1999 private record noted depression and anxiety. An October 2004 note from Dr. N. stated that the Veteran was being treated for anxiety and was on medication therapy. A June 2005 VA treatment record noted in a PTSD evaluation that the Veteran experienced nightmares once weekly and had strong memories of diesel fuel and flight deck images. However, the clinical disorders noted for Axis I were anxiety disorder and depressive disorder, with major depression as the primary diagnosis. Probable PTSD was noted only as a part of the anxiety disorder. A July 2005 VA treatment record did note PTSD. An April 2006 letter from Vet Center noted that the Veteran had "ongoing symptoms of anxiety, resulting in [p]anic [a]ttacks, isolation, anger and insomnia." The June 2007 VA medical examiner diagnosed the Veteran with anxiety and depressive disorder. A November 2012 letter from the Vet Center indicated that the Veteran reported "insomnia, hypervigilance, startle response, intense anger and significant injuries he sustained during his tour," and that the Veteran is viewed diagnostically as having PTSD. The April 2012 VA medical examiner diagnosed the Veteran with major depressive disorder. A December 2012 statement from a private psychologist notes that the Veteran had been diagnosed with severe PTSD that was related to his military service. Shedden element one, evidence of a current disability, is therefore met. With regard to the second element, in-service injury, the Veteran contends that he had been stationed aboard the USS Constellation and one of his crew members was killed. This stressor was verified by the RO. Element two, evidence of an in-service incurrence or aggravation of a disease or injury, is satisfied. With respect to crucial Shedden element three, nexus, the question presented, i.e., the relationship, if any, between the Veteran's current acquired psychiatric condition and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board observes that there are conflicting medical opinions regarding the relationship between the Veteran's current psychiatric disability and his military service. One the one hand, an April 2012 VA medical examiner opined that the Veteran's did not have PTSD and his major depressive disorder is less likely than not (less than 50 percent probability) causally or etiologically related to or the result of the Veteran's active service. On the other hand, a November 2012 letter from the Veteran notes that the Veteran had been diagnosed with combat related PTSD based on the DSM-IV. This opinion is supported by a subsequent letter in December 2012 letter from Dr. B. who noted that the Veteran was evaluated and treated for symptoms (emphasis added) of Post Traumatic Stress. Dr. B. stated that because he found that the Veteran "had been previously diagnosed with severe Post Traumatic Stress Disorder by at least four psychiatrists and three Master's degree social workers associated with the VA over the past ten years," he found that the April 2012 VA examiner "misunderstood the nature of [the Veteran's duty]" or "possibly confused [the Veteran] with another Veteran." After consideration of the evidence of record, the Board finds that the evidence for and the evidence against the claim are in relative equipoise. Accordingly, service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is warranted. Bilateral Hernia The record shows that the Veteran does not currently have a bilateral hernia disability, or any residuals from a bilateral hernia. VA treatment records from May 2007 to March 2012 contain only a reference to past bilateral hernia surgery and no indication of a current hernia disability. The April 2012 VA medical examiner did not detect a hernia upon examination. The Veteran's mother submitted a statement in October 2005, wherein she stated that the "surgeries had left him numb on both sides to this day." However, neither the Veteran nor his representative appear to make this contention, since in the Veteran's August 2007 statement, he simply states that he had two hernia surgeries after returning from service, and in a May 2008 statement, the representative mentions the dates and places where surgery was performed. For the sake of completeness, the Board will also briefly address Shedden elements (2) medical or lay evidence of in-service incurrence or aggravation of a disease or injury and (3) medical nexus. With respect to element two, the STRs, including the August 1967 separation examination, are absent for complaints of, or treatment for, a hernia during service. As mentioned, the Veteran had two hernia surgeries. A bilateral inguinal herniorraphy was performed in August 1967, after the Veteran had left service. A right bilateral inguinal herniorraphy was performed in 1969. With respect to element three, the April 2012 VA medical examiner noted that VA medical records from August through September 1967 stated that the Veteran developed groin pain one week before admission for a right inguinal surgery. However, this would be an injury that occurred nine days after discharge from active duty. In this case there is no competent medical or lay evidence whatsoever showing that the Veteran's remote hernia actually occurred during military service. Furthermore, there is no showing of a current hernia. Accordingly, the Board finds that the criteria for service connection are not met, and the claim must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, anxiety, and depression, is granted. Entitlement to service connection for a bilateral hernia is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs