Citation Nr: 1340340 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-24 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a skin disorder of the feet, diagnosed as calluses. 3. Entitlement to an increased evaluation for the service-connected duodenal ulcer, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard INTRODUCTION The Veteran served on active duty from January 1977 to January 1980. This appeal arose before the Board of Veterans' Appeals (Board) from rating decisions issued in February and April 2010 by the Waco, Texas, Department of Veterans Affairs (VA), Regional Office (RO). The February 2010 decision denied an increased evaluation for the service-connected duodenal ulcer disability and denied service connection for depression. The April 2010 decision denied entitlement for service connection for plantar warts. In December 2011, the Veteran testified before the undersigned at a personal hearing via video conference. A transcript of this proceeding has been included in the claims folder. The issue of entitlement to an increased evaluation for the service-connected a duodenal ulcer, currently evaluated as 20 percent disabling is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An acquired psychiatric disorder, variously diagnosed as depression and a bipolar disorder, was not present in service, nor has such a disorder been etiologically related to service. 2. A skin disability of the feet, to include callosities, is not etiologically related to the Veteran's period of service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by the Veteran's period of service. 38 U.S.C.A. §§ 1131, 1132, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303(b), 3.304 (a) (2013). 2. A skin disorder of the feet, to include callosities, was not incurred in or aggravated by service. 38 U.S.C.A. § 1131, 1132, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303(b), 3.304 (a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in August and December 2009 and in January 2010. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations of the feet in October 2009 and in March 2010. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that the Veteran was not afforded a VA psychiatric examination. It is found that such an examination is not necessary in this case. While the Veteran has been diagnosed with depression, there is no indication that any psychiatric disorder was present in service and there is no suggestion in the record that there is any causal relationship between the Veteran's service and the currently diagnosed depression. As a consequence, there is no need for an examination on this issue. See McClendon, supra. As already noted, the Veteran testified before the undersigned during a December 2011 videoconference hearing. According to 38 C.F.R. § 3.103(c)(2), it is the responsibility of the presiding hearing officer to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id, at 496. Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id at 496-97. A review of the transcript notes that the Veteran understood that, in regard to his ulcer claim, he had to submit evidence that indicated that his condition had worsened (in fact, he alleged that it had) and that, in regard to the service connection claims, he had to demonstrate that any currently diagnosed disorders were related to service. Neither the Veteran nor his representative indicated that there were any outstanding records that needed to be obtained. Therefore, the Board finds that the undersigned met the two-fold duty to inform the Veteran of the outstanding issues related and material to the claims and to suggest the submission of any relevant evidence that was missing or had been overlooked. The duties imposed by Bryant have been satisfied. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2013). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2013). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1131, 1132. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Factual background and analysis An acquired psychiatric disorder The Veteran is seeking service connection for an acquired psychiatric disorder, diagnosed as depression. He asserts that this condition has been present ever since service. He has alleged that it began after seeing a friend crushed to death after the APC he was in rolled over during training in Germany. Therefore, he believes that service connection is justified. The service treatment records do not show any complaints of, treatment for, or diagnoses of any psychiatric disorder. Both the Veteran's January 1977 entrance and August 1979 separation examinations are negative for any psychiatric complaints. The examinations themselves reflected that he was psychiatrically normal. The evidence of record includes voluminous VA treatment records developed between 1987 and 2011. They are replete with diagnoses of depression. They also indicate that the Veteran has been treated repeatedly, for the first time in 1987, for alcohol and cocaine dependence. During a September to October 1987 VA hospitalization for alcohol rehabilitation there was no mention of depression. During a February to March 1996 admission for alcohol treatment, the Veteran referred to a past medical history of depression. He was admitted from June to July 1999 to the VA's Residential Substance Abuse Treatment Program for the treatment of alcohol and cocaine abuse. At that time, he was not noted to be depressed, although a bipolar disorder was diagnosed. In June 2000, he stated that he had had problems with depression since 1987 (which he reiterated in a January 2004 treatment record), although by 2009 he was stating that he believed this condition had been present in service. On July 9, 2009, he related his symptoms to the accident that killed his friend in Germany. He was diagnosed with an adjustment disorder with mixed anxiety and depression that was felt to be related to his mother's dying, his siblings "putting him out," and his homelessness. There was no mention of the disorder being related to service. On July 13, 2009, he was evaluated for posttraumatic stress disorder (PTSD); it was concluded that he failed to meet the criteria for this diagnosis. In June 2010, he reported experiencing nightmares and flashbacks, although there is no indication that these were related to his service; rather, the only stressor noted was the death of his mother. After 19 months of sobriety, he began to drink again in September 2011. He again referred to nightmares, indicating that these were about his friend who was killed in service. However, the mental status examination was within normal limits. The Axis I diagnosis was cocaine/alcohol dependence in early remission in a controlled environment; depression, not otherwise specified. After a careful review of the evidence of record, it is found that entitlement to service connection for an acquired psychiatric disorder has not been established. There is no question that the Veteran has been diagnosed with depression and possibly bipolar disorder. Therefore, one element of service connection, namely the presence of a current disability, has been established. However, the remaining two elements are not present in this case. Specifically, there is no indication of any psychiatric complaints or treatment in service; thus, no "injury or disease" has been noted in service. Additionally, there is no competent evidence of record that relates his diagnosed depression or possible bipolar disorder to service. In fact, there are several treatment records that date the onset of the disorder to 1987, some seven years following his release from service. Because these two elements of service connection have not been established in this case, service connection cannot be awarded. The only statements that relate the Veteran's depression to service are his own. However, there is no competent opinion of record that provides for such a relationship. The Board points out that, although a lay person is competent to testify as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to the cause or diagnosis of his psychiatric complaints. In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Skin disorder of the feet, diagnosed as callosities The Veteran has contended that he has callosities on his feet that began in service. He noted that he had been in the infantry, which involved a great deal of marching in the field. He argues that this is the cause of his current disorder. The service treatment records indicate that the Veteran's feet were normal at the time of the January 1977 entrance examination. On July 18, 1977, he was seen for a plantar wart on the right foot. He complained of severe pain and the foot was tender to palpation. He was told to trim the callus daily and to soak it. There was no mention of any problems with the left foot and there was no further treatment of the right foot. At the time of his August 1979 separation examination, he made no complaints concerning his feet and the objective examination was within normal limits. The first post-service reference to his feet was made on October 30, 1989. The Veteran complained of right foot pain, noting that he had walked eight miles the day before. He had tender calluses on the right sole. An August 2006 VA outpatient treatment note referred to bilateral plantar warts, as well as some trouble with calluses. These caused painful walking. Callosities on both feet were noted in July 2009. The Veteran was afforded a VA examination in October 2009. The examiner noted that the claims folder had not been available for review. It was noted that the Veteran had been seen on July 16, 2009 at which he had stated that foot calluses had been present since service. He also claimed that he had been seen intermittently in service for complaints of calluses. He stated that he trimmed these calluses himself, but that he has continuous pain that is made worse with prolonged walking and standing. The examiner noted bilateral hyperkeratosis under the fifth submetatarsal. The Veteran asserted that he experienced associated weakness, stiffness, swelling, and lack of endurance. He did wear orthotics that helped somewhat with his pain. Following a thorough examination of the feet, the examiner diagnosed bilateral calluses. There was no opinion proffered as to their relationship to service. Another VA examination was conducted in March 2010. The examiner noted that the claims folder had been reviewed in conjunction with the examination. It was noted that there was only one notation of any foot treatment in service, on June 24, 1977; there was no other treatment in the service treatment records. This had only referred to the right foot; there was never any treatment of the left foot in service. After examining the Veteran, the examiner provided the following statement: On review of medical records, the patient was seen for a right foot plantar's wart in June 1977. This initial evaluation was performed during active duty and occurred approximately 33 years ago. On review of service medical records, there was no further evaluation for his feet or treatment for plantar's warts (or calluses). On review of medical records, there was no evidence of ongoing treatment through the VA or through his private physician for keratosis of the feet. The patient's current bilateral feet calluses (hyperkeratosis) are less likely as not caused by or the result of treatment for a right plantar's wart. On review of his service medical records, there was a diagnosis of plantar's wart only. The patient received no further treatment on active duty. There is no evidence of ongoing treatment after active duty service. VA treatment records developed between April 2010 and September 2011 reflect treatment for right foot pain secondary to hammertoes on the callus in July 2011. Keratotic lesions were noted in August 2011 and the following month the Veteran had a callus debrided. After a careful review of the entire evidence of record, the Board finds that entitlement to service connection for a skin disorder of the feet, to include calluses, is not warranted. The service treatment records refer to one treatment for a plantar wart on the right foot in July 1977. There was no treatment noted for any condition of the left foot. There was also no further treatment of the right foot while the Veteran was on active duty and the August 1979 separation examination was negative for any foot disorders. Significantly, there is no mention of any foot complaints until October 1989, when the Veteran was seen for tender calluses on the bottom of his right foot. Given the normal separation examination and the extensive period of time after service with no complaints, the Board finds that the plantar wart treated in service was an acute complaint and did not represent the onset of a chronic condition. As noted, the first mention of any foot calluses was not made until approximately nine years after his separation from service. While this does establish the presence of a current disability, this disability has not been etiologically linked to any event of service, to include the one treatment for a plantar wart in July 1977. In fact, a VA examiner, in March 2010, after a full review of the evidence of record, and following a thorough examination of the Veteran, opined that his current callosities were not related to his service, or to the one-time treatment for a plantar wart while on active duty. There is no competent evidence to refute the findings of this examiner. The only statements that relate the Veteran's bilateral callosities to service are his own. However, there is no competent opinion of record that provides for such a relationship. The Board points out that, although a lay person is competent to testify as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to the cause or diagnosis of his currently diagnosed bilateral foot callosities. In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disorder is denied. Entitlement to service connection for a skin disorder of the feet, diagnosed as callosities, is denied. REMAND The Veteran has requested that a higher evaluation be assigned to his service-connected duodenal ulcer disorder. A review of the record indicates that his ulcer disorder was last examined by VA in January 2010. He testified at a personal hearing in December 2011 that his condition has worsened since that time, noting in particular that he has suffered from weight loss, constant reflux and vomiting after meals. Since the Veteran has alleged that his condition has worsened since the last VA examination, the Board finds that another examination is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (which found that another VA examination is needed when there is an allegation of worsening of a service-connected disorder since the last VA examination); see also 38 C.F.R. § 3.327(a) (2013). The Board also notes that the last VA treatment records date from September 2011. It should be ascertained whether there are additional records available pertaining to the Veteran's ulcer disorder. Any records identified must be obtained for consideration. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names and addresses of all VA and non-VA health care providers from whom he has sought treatment for his duodenal ulcer since September 2011. After obtaining any necessary releases from the Veteran, all identified treatment records must be obtained and associated with the claims folder. All efforts to obtain these records must be documented for inclusion in the claims folder. The Veteran and his representative must be informed of any records that could not be obtained. This notice must include: (a) the identity of the records VA was unable to obtain; (b) an explanation of the efforts VA made to obtain the records; (c) a description of any further action VA will take regarding the claim including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the Veteran submits the records VA was unable to obtain, and (d) notice that the Veteran is ultimately responsible for providing the evidence. 2. Once the above-requested development has been completed, afford the Veteran a complete VA gastrointestinal examination in order to ascertain the current nature and degree of severity of the service-connected duodenal ulcer disease. A copy of this remand and the entire claims folder must be made available to the examiner to review in conjunction with the remand, and this review must be noted in the examination report. The examiner must specifically note whether the disorder is moderately severe; that is, whether there is impairment of health manifested by anemia and weight loss; or whether there are recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times per year. All specialized testing deemed necessary must be undertaken. A complete rationale for any opinions expressed must be included. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and the possible adverse consequences of failing to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter advising the Veteran of the time, date, and location of the scheduled examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. After the completion of the above-requested development, readjudicate the Veteran's claim for an increased evaluation for the service-connected duodenal ulcer. If the claim remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an opportunity to respond. The claims folder must then be returned to the Board for further appellate consideration, if otherwise 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs