Citation Nr: 1341340 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-11 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for radiculopathy. 4. Entitlement to service connection for diasphoresis. 5. Entitlement to service connection for arm pain. 6. Entitlement to service connection for a prostate disability. 7. Entitlement to service connection for an inguinal hernia. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for peripheral neuropathy. 10. Entitlement to service connection for a gastrointestinal disability. 11. Entitlement to service connection for a cervical spine disability. 12. Entitlement to service connection for arthritis. 13. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from September 1957 to May 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Additional translated private medical treatment records and VA treatment records have been associated with the claims file since the most recent Statement of the Case for arthritis and the Supplemental Statement of the Case for all other issues. However, the records are cumulative of the medical evidence already considered by the RO. Therefore, a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of the evidence is not required. 38 C.F.R. § 20.1304(c) (2013). In addition, the Veteran requested a local hearing in connection with his appeal. However, he cancelled the request in writing. Therefore, the request for a hearing has been withdrawn and the Board may proceed with the decision. 38 C.F.R. § 20.702(e) (2013). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A psychiatric disability was not present in service, or within the first post-service year, and has not otherwise been related to service. 2. A lumbar spine disability was not present in service, or within the first post-service year, and has not otherwise been related to service. 3. Radiculopathy was not present in service and has not otherwise been related to service. 4. Diaphoresis was not present in service and has not otherwise been related to service. 5. Arm pain was not present in service and has not otherwise been related to service. 6. A prostate disability was not present in service and has not otherwise been related to service. 7. An inguinal hernia was not present in service and the Veteran is not credible with respect to an in-service injury. 8. Hypertension was not present in service, or within the first post-service year, and has not otherwise been related to service. 9. Peripheral neuropathy was not present in service and has not otherwise been related to active service. 10. A gastrointestinal disability was not present in service and has not otherwise been related to service. 11. A cervical spine disability was not present in service and the Veteran is not credible with respect to his report of an in-service injury. 12. Arthritis was not present in service and has not otherwise been related to service. 13. Entitlement to TDIU may not be granted as a matter of law, as the Veteran does not have any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for radiculopathy are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 4. The criteria for service connection for diaphoresis are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 5. The criteria for service connection for arm pain are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 6. The criteria for service connection for a prostate disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 7. The criteria for service connection for an inguinal hernia are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 8. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 9. The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 10. The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303 (2013). 11. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 12. The criteria for service connection for arthritis are not met. 38 U.S.C.A. §§ 1131, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 13. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). A June 2010 letter satisfied the duty to notify provisions and included the criteria to substantiate the claims for service connection and entitlement to a TDIU. The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As to the duty to assist, the Board finds that VA has secured all available and identified evidence including the Veteran's service treatment records, VA treatment records, and private treatment records. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran has not been provided VA examinations with respect to the issues on appeal. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the Veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the third element, an indication that the current disability or symptoms may be associated with service, establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the two. Here, the Board finds that VA examinations with opinions are not required. The service treatment records are absent for any documentation of the claimed disabilities and there is no medical evidence of any of the claimed disabilities until many years after service discharge. The separation report of medical examination shows that all systems were clinically evaluated as normal. In his report of medical history, the Veteran denied having or ever having swollen or painful joints, depression or excessive worry, high or low blood pressure, neuritis, arthritis or rheumatism, bone, joint, or other deformity, stomach, liver, or intestinal trouble, or frequent indigestion. He also denied having any illness or injury other than those noted. The Veteran has merely filed claims for service connection, without any supporting allegation or explanation. The Veteran presented a medical opinion in which his private physician stated that the Veteran "could have" injured his neck during active service and stress over shoulders, neck, and back causes inflammatory changes that in the long term promotes degenerative changes and brings problems of radiculopathy and neuropathy. The private physician also noted that the Veteran developed a hernia after lifting heavy water gallons-but did not mention that this occurred during active service. However, as noted above, the Board does not find there to be an in-service disease or injury to which a current disability could be related. The Board places great value on the Veteran's service treatment records including his completed report of medical history prior to separation from active duty and the absence of any reported continuity of symptoms or objective evidence or the claimed disabilities until many years after service. As discussed below, the Board does not find the Veteran credible with respect to his report to his private physician of a neck injury during active service. In the absence of any evidence of an in-service disease or injury, the Board is not obligated to provide the Veteran with an examination or obtain an opinion on these matters. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case); see also Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such deficiency is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Legal Criteria Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) Service connection for certain disabilities, including arthritis, hypertension, and a psychosis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In addition, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran contends that his claimed disabilities are related to active service. The current medical evidence contains documentation of the Veteran's claimed disabilities. However, the service treatment records are absent for any indication or documentation of the claimed psychiatric disability, lumbar spine disability, radiculopathy, diaphoresis, arm pain, prostate disability, inguinal hernia, hypertension, peripheral neuropathy, gastrointestinal disability, cervical spine disability, or arthritis. The separation report of medical examination shows that all systems were clinically evaluated as normal. The separation report of medical history shows that the Veteran denied having or ever having swollen or painful joints, depression or excessive worry, high or low blood pressure, neuritis, arthritis or rheumatism, bone, joint, or other deformity, stomach, liver, or intestinal trouble, or frequent indigestion. He also checked no as to whether he ever had any illness or injury other than those already noted. The service treatment records show that the Veteran was separated for inadequate personality due to language difficulties. His psychiatric evaluation was normal. There is no objective evidence of the Veteran's claimed disabilities until decades after separation from active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). In a May 2010 letter, Dr. N.A.O. stated that the Veteran "could have injured his neck while in training during service." "Stress applied over his shoulders, neck, and back on a daily basis causes inflammatory changes that in the long term promote[] degenerative changes. This causes loss of correct alignment and loss of curvature of cervical, thoracic, and lumbar lordosis. This also brings problems of radiculopathy and neuropathy." Dr. N.A.O. stated that it was "more probable than not" that his neck condition was service connected as a result of his duties while at service. As noted previously, a VA medical opinion has not been obtained with respect to the etiologies of the Veteran's disabilities. Here, Dr. N.A.O. stated that the Veteran's neck "could have" been injured during service and then opined that it was more probable than not that his neck condition was service connected. However, the claims file is absent for any statement from the Veteran regarding the circumstances of an injury or symptoms during active service. Although the Veteran is competent to attest to symptoms, he has not done so at any point during the appeal period. The Board assigns great value to the service treatment records to include the separation report of examination and the separation report of medical history. Again, the Veteran specifically denied experiencing any illness or injury that was not listed on the report of medical history. His systems were clinically evaluated as normal. The Board does not find the Veteran credible with respect to an in-service neck injury. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). As such, Dr. N.A.O.'s opinion is of little, if any, probative value as the Board does not find that the evidence reflects an in-service injury or disease to which a current disability can be related. To the extent that Dr. N.A.O. has stated that changes to the spine can bring about radiculopathy and peripheral neuropathy, the Board has found that the Veteran's account to his private physician of an in-service spine injury is not credible. Therefore, any opinion linking the development of radiculopathy and neuropathy to changes in the spine does not serve as probative evidence of a nexus relationship to active service as the Veteran's account of an in-service neck injury is not credible. In addition, the Board observes that Dr. N.A.O. stated that, as a result of lifting heavy water gallons, the Veteran developed an inguinal hernia for which he had surgery and now he was unable to lift heavy weights to prevent recurrence. However, Dr. N.A.O. did not refer to the Veteran's service when addressing the Veteran's hernia. In addition, the Veteran has not provided any statements related to an in-service hernia other than his general statements that his disabilities are due to military service. Again, the service treatment records are absent for any documentation of a hernia and there is no evidence of a hernia until decades after separation from active service. Thus, the Board does not find the Veteran credible with respect to any in-service hernia. The Veteran has not provided statements related to continuity of symptomatology nor does the record reflect objective evidence of continuity of symptomatology since the Veteran's period of active service. Therefore, service connection based on continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(b). The Board recognizes the Veteran's general statements that his claimed disabilities are due to military service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any disability to service, the Board finds that the etiologies of the aforementioned disabilities are complex medical questions. The Veteran has not been shown to possess medical knowledge or expertise and is therefore not competent to provide opinions as to the etiology of these disabilities. See also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Further, the Veteran has only generally stated that his disabilities are due to service without any statements related to continuity of symptomatology or in-service symptoms, injuries, or diseases (other than the neck injury which is not credible). See generally Waters, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In light of the above, service connection is not warranted for a psychiatric disability, lumbar spine disability, radiculopathy, diasphoresis, arm pain, prostate disability, inguinal hernia, hypertension, peripheral neuropathy, gastrointestinal disability, cervical spine disability, and arthritis. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application and the claims are denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service connection on a presumptive basis is also not warranted. There is no evidence of arthritis, hypertension, or a psychosis within one year of separation from active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability must be rated as 60 percent or more disabling, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more disabling, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not have any disabilities for which service connection has been established. As entitlement to TDIU may only be granted for unemployability due to service-connected disability, the predicate requirement for TDIU eligibility has not been met. Thus entitlement to TDIU must be denied as a matter of law. Accordingly, entitlement to a TDIU is denied. As the law, and not the facts, determines the outcome of this claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for a psychiatric disability is denied. Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for radiculopathy is denied. Entitlement to service connection for diasphoresis is denied. Entitlement to service connection for arm pain is denied. Entitlement to service connection for a prostate disability is denied. Entitlement to service connection for an inguinal hernia is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for peripheral neuropathy is denied. Entitlement to service connection for a gastrointestinal disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for arthritis is denied. Entitlement to a TDIU is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs