Citation Nr: 1341949	
Decision Date: 12/19/13    Archive Date: 12/31/13

DOCKET NO.  09-10 636	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD).

2.  Whether new and material evidence has been received to reopen a claim for service connection for calluses of both feet.

3.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

4.  Entitlement to service connection for thoracic aortic aneurysm.

5.  Entitlement to service connection for coronary artery disease (CAD) with history of myocardial infarction.

6.  Entitlement to service connection for a decubitus ulcer.

7.  Entitlement to special monthly compensation based on the need for regular aid and attendance.


REPRESENTATION

Appellant represented by:	Sheila M. G. Mitchell, Agent 



ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Navy from December 1964 to April 1970, and had two years of prior active service in the Navy beginning in August 1962.

This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the RO in Roanoke, Virginia.  

In February and May 2008 rating decisions, the RO denied entitlement to service connection for a thoracic aortic aneurysm, CAD with history of myocardial infarction, and a decubitus ulcer.  In a January 2010 rating decision, the RO determined that new and material evidence had not been submitted to reopen a previously denied claim for service connection for PTSD.  In a June 2011 rating decision, in pertinent part, the RO determined that new and material evidence had not been submitted to reopen claims for service connection for PTSD and calluses of both feet, and denied special monthly compensation based on the need for regular aid and attendance.

The Board notes that there are other issues which are not currently on appeal.  The Veteran has been in receipt of nonservice-connected pension benefits for several years, and in its June 2011 rating decision, the RO granted entitlement to special monthly pension based on the need for regular aid and attendance.

The Veteran initially requested a Board hearing, but by a statement dated in June 2013, his representative withdrew his hearing request.  See 38 C.F.R. § 20.704(e).

In the current decision, the Board is reopening the previously denied claim for service connection for PTSD.  Evidence of record shows that during the course of the appeal, the Veteran has been diagnosed with depression, as well as PTSD.  Hence, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

The issues of entitlement to service connection for an acquired psychiatric disorder to include PTSD, service connection for thoracic aortic aneurysm, service connection for CAD, and entitlement to special monthly compensation based on the need for regular aid and attendance 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.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).


FINDINGS OF FACT

1.  The RO denied service connection for PTSD and calluses of both feet in a February 2006 rating decision and properly notified the Veteran, who did not appeal that decision. 

2.  With respect to the PTSD claim, some of the additional evidence received since that February 2006 rating decision is not cumulative or redundant of evidence already of record and considered in that decision and raises a reasonable possibility of substantiating the claim for service connection for PTSD.

3.  With respect to the claim regarding foot calluses, the evidence added to the record since the February 2006 decision is cumulative or duplicative of evidence already of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for calluses of both feet, and does not raise a reasonable possibility of substantiating this claim.

4.  The preponderance of the competent and credible evidence shows that the Veteran does not have a decubitus ulcer as a result of his military service.


CONCLUSIONS OF LAW

1.  The February 2006 rating decision that denied service connection for PTSD and calluses of both feet is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.1103 (2013). 

2.  New and material evidence having been received, the claim for service connection for PTSD is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).

3.  New and material evidence has not been received, and the claim for service connection for calluses of both feet is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

4.  A decubitus ulcer was not incurred in or aggravated by the Veteran's military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

VA has duties to notify and assist the Veteran in substantiating these claims 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).  Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide.  See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). 

These VCAA notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486. 

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VA must both notify a claimant of the evidence and information that is necessary to reopen a previously denied claim and of the evidence and information necessary to establish entitlement to the underlying benefit being sought, i.e., service connection. 

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such  as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, letters dated in May 2007, July 2009, August 2010, September 2010 and November 2010 were sent to the Veteran prior to the February 2008, May 2008, January 2010 and June 2011 rating decisions on appeal, i.e., in the preferred sequence.  These letters informed him of the type of information and evidence required to substantiate the claims for service connection, including the information that is necessary to reopen the previously denied claims for service connection for PTSD and calluses of both feet, and advised him of the downstream disability rating and effective date elements of the claims.  See Dingess/Hartman, supra.  

The Board finds that the Veteran has received all required VCAA notice concerning these claims.  Moreover, he has not alleged any prejudicial error in the content or timing of the VCAA notice he received.  As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and that it is unduly prejudicial - meaning outcome determinative of his claim.  Thus, absent this pleading or showing, the duty to notify has been satisfied.

VA also fulfilled its duty to assist the Veteran with these claims by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993).  To this end, the RO obtained his service treatment records (STRs), service personnel records, private medical records, and VA treatment records and examination reports.  The RO has also considered the Veteran's lay statements and other evidence he submitted in support of his appeal.

Records on file reflect that the Veteran receives benefits from the Social Security Administration (SSA).  However, the Board finds that VA does not have a duty to obtain his SSA records as these records are not relevant to the claims on appeal.  In this regard, the Board notes that SSA inquiries conducted by the RO reflect that the SSA made no disability determination prior to its award of benefits, and that SSA informed VA that no data was found regarding any SSA benefits under the Social Security disability insurance program (Title II of the Social Security Act) or under the Supplemental Security Income (SSI) program (Title XVI).  By an October 2007 letter to the Veteran, the SSA informed him that it would begin paying for his Medicare medical insurance premium.  In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) stated that VA's duty to assist "is not boundless in its scope" and "not all medical records or all SSA disability records must be sought--only those that are relevant to the veteran's claim." Golz, 590 F.3d at 1320-21.  "Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim."  Id. at 1321.  The evidence reflects that SSA benefits were not awarded on the basis of a disability determination, and thus these records do not have a reasonable possibility of helping to substantiate the Veteran's claims.

The Board acknowledges that, to date, the Veteran has not been afforded a VA examination in regard to his claim for service connection for a decubitus ulcer.  In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 

With respect to the third factor above, this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

In this case, no examination is necessary in order to adjudicate the Veteran's claim of entitlement to service connection for a decubitus ulcer.  Specifically, there is no evidence of a current decubitus ulcer.  As such, the necessity for a VA examination has not been triggered.

In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, and no further action is necessary under the mandates of the VCAA. 

New and Material Evidence 

In its June 2011 rating decision, the RO determined that new and material evidence had not been received to reopen the previously denied claims for service connection for PTSD and calluses of both feet.  Regardless of how the RO ruled on this question, the Board must determine whether there is new and material evidence to reopen these claims, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate these claims on their underlying merits.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108; see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Id.   

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Shade, supra. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id.  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium).  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating that Justus does not require the VA Secretary to consider the patently incredible to be credible). 

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The Veteran submitted his original claims for service connection for calluses of both feet and PTSD in July 2005.

The RO denied entitlement to service connection for PTSD and calluses of both feet in a February 2006 rating decision, finding that the Veteran's service treatment records were negative for calluses of the feet, that there was no evidence linking the current bilateral foot calluses with service and that a current diagnosis of PTSD was not shown.  The RO properly notified the Veteran of this denial by a letter dated in May 2006. The Veteran filed a notice of disagreement with the February 2006 rating decision, and a statement of the case was issued in January 2007.  The Veteran did not file a timely substantive appeal as to these issues, and no new and material evidence pertinent to these issues was physically or constructively associated with the claims folder within one year after the rating decision.  See 38 C.F.R. § 3.156 (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the February 2006 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103, 20.1105 (2013). 

Evidence of record at the time of the prior February 2006 final rating decision included service treatment records which are negative for foot calluses and for a psychiatric disorder.  On separation medical examination in April 1970, the Veteran's feet and psychiatric system were clinically normal.  Evidence then of record also included VA treatment records dated in 2005 reflecting treatment for calluses (tylomas) of the feet and inpatient substance abuse treatment for cocaine dependence, alcohol abuse, and major depressive disorder.  His medical history included recurrent major depression.

Evidence of record at the time of the prior February 2006 decision also included a report of a November 2005 VA PTSD examination, which reflects that the examiner noted that PTSD had previously been diagnosed at a VA Medical Center in May 2005 but the diagnosis was not based on a specific traumatic event.  On current PTSD examination, the examiner indicated that the criteria for a diagnosis of PTSD were not met.  Evidence then of record also included a report of a November 2005 VA general medical examination which reflects that the Veteran asserted that his current foot calluses were caused by wearing ill-fitting shoes in the Navy.  After a physical examination, the examiner diagnosed tyloma of the bilateral feet, onychomycosis of the bilateral feet, bilateral hallux valgus deformity of the feet, and bilateral pes planus of the feet.

In June 2009, the Veteran filed an application to reopen his claim for service connection for PTSD.  In July 2010, he repeated that he wanted to reopen his PTSD claim, and his claim for service connection for calluses of both feet.

Additional evidence received since the prior final February 2006 decision includes extensive VA and private medical records dated from 1997 to 2012 pertaining to treatment for a variety of conditions including PTSD and calluses of both feet. 

With respect to the claim for PTSD, the Board finds that some of this additional evidence is both new and material, as the evidence of record now includes a current diagnosis of PTSD, evidence of which was not of record at the time of the prior final decision.  When considered with the other evidence of record, this evidence triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  Thus, the claim for service connection for PTSD is reopened.  See Shade, supra; 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  

With respect to the application to reopen a previously denied claim for service connection for calluses of both feet, most of the additional medical records are new, but not material, as they relate to other medical conditions and do not pertain to calluses of the feet, and therefore do not relate to an unestablished fact necessary to substantiate this claim.  

Similarly, additional evidence of record includes the Veteran's lay statements relating to his service that were submitted in support of his PTSD claim, and his statements regarding other claims for VA benefits.  Although this evidence is new, it is not material, as it does not relate to an unestablished fact necessary to substantiate this claim.

Those additional medical records which do pertain to calluses of the feet are cumulative, not new, as they merely show the continued existence of calluses of both feet, evidence of which was already of record at the time of the prior final denial.  The Board finds that the additional evidence received since the prior final and binding denial of this claim for service connection for calluses of both feet only relates to diagnosis or treatment for calluses of the feet and other foot disorders, and as such does not relate to an unestablished fact necessary to substantiate this claim.  A then-current disability of calluses (tylomas) of the feet was established in 2005.  

In some of the recent VA treatment records, the Veteran has reiterated his prior assertions that his calluses of both feet began in service.  He made this same allegation during the November 2005 VA examination that was considered by the RO in its initial denial of this claim in February 2006.  Thus, merely reiterating this allegation is not new evidence.  See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decisionmakers at time of prior final disallowance of the claim is not new evidence).  See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).

As such, in the absence of any additional evidence relating to an unestablished fact necessary to substantiate this claim, including regarding the additional requirement of etiology, this additional evidence received since the prior final denial does not raise a reasonable possibility of substantiating this claim, and therefore is not new and material evidence.  38 C.F.R. § 3.156(a).  The application to reopen the claim for service connection for calluses of both feet is not reopened.


Service Connection 

The Veteran contends that he has a decubitus ulcer that is related to service.  He has contended that he had temporary duty at a communications station in Saigon, Vietnam from 1968 to 1969 (during the Vietnam era), although he was stationed in Okinawa.  See his March 2011 statements.  He has also contended that he was a Navy SEAL and went into Vietnam.  See December 2009 report of contact.  

The Board notes that a "decubitus ulcer" is defined as a chronic ulcer that appears in pressure areas of skin overlying a bony prominence in debilitated patients confined to bed or otherwise immobilized, due to a circulatory defect.  See Stedman's Medical Dictionary, 27th ed., 2000, at 1903).

The Board has reviewed all the evidence in the appellant'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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.  Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

To establish entitlement to service connection, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since filing the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA compensation may only be awarded to an applicant who has disability existing on the date of application, not for past disability.  Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997)); but see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

If a Veteran was exposed to a herbicide agent (including Agent Orange) during active military, naval, or air service, certain specified diseases shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a)  are met, even if there is no record of such disease during service.  38 C.F.R. § 3.309(e).  These diseases shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii).  These diseases are chloracne or other acneform disease consistent with chloracne, Type II (adult-onset) Diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson's disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e) (2013).  Decubitus ulcer is not a listed condition under 38 C.F.R. § 3.309(e), and service connection may not be awarded for this condition on a presumptive basis. 

To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, 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," is required. 38 C.F.R. § 3.303(b).  Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  Id.  

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b). 

Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity (permanency) of disease or injury in service and, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Decubitus ulcer is not listed in 38 C.F.R. § 3.309(a).  

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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).

Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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.  Jandreau v. Nicholson, 492 F.3d 1372  (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues; their competency depends entirely on the specific disability at issue.  See Kahana v. Shinseki, 24 Vet. App. 428, 435   (2011).  Specifically, lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr, supra; see also Jandreau, supra; Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398   (1995) (flatfeet).  However, laypersons also have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).

Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

As will be discussed below, the evidence does not reflect that the Veteran currently has a decubitus ulcer or that he had this disability at the time the claim for VA disability compensation was filed or during the pendency of the appeal.  See McClain, supra.

A review of the Veteran's DD Form 214 shows that he served in the U.S. Navy from December 1964 to April 1970, with 2 years of prior service.  He did not receive any combat citations.  His primary military occupational specialty was that of a communications technician, and the related civilian occupation was personnel clerk.  His service personnel records reflect that he enlisted in the Navy in August 1962.

Service personnel records reflect that his primary military occupational specialty was that of a communications technician.  He served in Virginia and Florida in 1964 and 1965, in Turkey from 1966 to 1967, in Ohio from 1967 to 1968, in Okinawa, Japan from 1968 to 1969, and aboard the USS Columbus (CG-12) in 1970.  While he was stationed in Okinawa, he was assigned to the U.S. Naval Security Group Activity.  

Service treatment records are negative for a decubitus ulcer.  A January 1967 chest X-ray study was normal.  On separation medical examination in April 1970, the Veteran's lungs, chest, and heart were normal.  The skin was normal with the exception of pseudofolliculitis of the beard area.

VA medical records reflect that in March 2005, the Veteran was seen for complaints of chest pain and shortness of breath, and was admitted with a nickel-sized sacral decubital ulcer.  The diagnostic assessment included known CAD, non-compliant with medications, hypertension, history of pulmonary embolism, bronchitis versus pneumonia, and stage II decubital ulcer in the gluteal fold.  

A June 2005 medical report for general relief, Medicaid and Temporary Assistance for Needy Families reflects diagnoses of multi-vessel CAD, thoracic aortic aneurysm, pulmonary embolism, substance abuse, depression, and hypertension.

On November 2005 VA general medical examination, the examiner diagnosed tyloma of the bilateral feet, onychomycosis of the bilateral feet, bilateral hallux valgus deformity of the feet, bilateral pes planus of the feet, hypertension, thoracic aortic aneurysm, and pulmonary emboli.

In February 2007, the Veteran filed claims for service connection for a heart condition, chest pain, CAD, decubitus ulcer and thoracic aortic aneurysm.

There is no competent medical evidence of record linking the Veteran's decubitus ulcer to service, to include any claimed Agent Orange exposure.  The Veteran has merely asserted that his claimed decubitus ulcer is related to service.  Moreover, he has never reported continuous symptoms of this condition ever since service.

There is no probative evidence of a decubitus ulcer during the pendency of this appeal, which was filed in February 2007.  The Board notes that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability or at least had it during the pendency of the appeal.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain, supra.  Although the Veteran has contended that he has this disability, service connection for a decubitus ulcer is not warranted in the absence of proof of a current disability.  The Board finds that he is competent to say that he has a skin ulcer as this is observable by a layperson, but that his assertion is not credible in light of the extensive medical evidence which does not show the existence of this condition after March 2005 or at any point during the appeal.

As the preponderance of the evidence is against the claims for service connection for a decubitus ulcer, the benefit-of-the-doubt rule does not apply, and this claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

The claim for service connection for PTSD is reopened, and the claim is granted to this extent only.

The application to reopen a previously denied claim for service connection of calluses of both feet is denied.

Service connection for a decubitus ulcer is denied.


REMAND

As noted above, the Veteran's claim for service connection for PTSD has been broadened to include depression.  See Clemons, supra.  His claim for service connection for an acquired psychiatric disorder, to include PTSD, requires further development before being decided.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  The Board finds that his claims for service connection for CAD and thoracic aortic aneurysm must also be remanded.

Although the Board sincerely regrets the additional delay that inevitably will result as a consequence of this remand, the additional development of these claims is necessary to ensure there is a complete record upon which to adjudicate these claims and to afford the Veteran every possible consideration.

The Veteran and his representative contend that he served in Vietnam during active service.  He has contended that he had temporary duty at a communications station in Saigon, Vietnam from 1968 to 1969 (during the Vietnam era), although he was stationed in Okinawa.  See his March 2011 statements.  He has also contended that he was a Navy SEAL and went into Vietnam.  See December 2009 report of contact.  

The evidence of record reflects that the Veteran served on active duty as a communications technician in the U.S. Navy from 1962 to 1970.  He contends that he has current PTSD due to several stressful events in service.  He has been vague about the details of such stressors.  Moreover, he has made conflicting statements as to whether or not he served in combat.  See, e.g., June 2005 VA discharge summary, November 2005 VA PTSD examination, and August 2010 VA psychiatry consult.  The Board notes that the Veteran's service personnel records do not verify any combat service or service in Vietnam.  In a January 2011 memorandum, the RO indicated that the NPRC did not find evidence to substantiate service in Vietnam, and found no evidence in the Veteran's personnel records to substantiate service in Vietnam.  The RO also noted that attempts to obtain additional information from the Veteran regarding his claimed Vietnam service were unsuccessful.

The question of whether or not the Veteran served in Vietnam during active service is relevant to his claims for service connection for PTSD, CAD, and thoracic aortic aneurysm.  If a Veteran was exposed to a herbicide agent (including Agent Orange) during active military, naval, or air service, certain specified diseases, including ischemic heart disease, shall be presumptively service connected.  See 38 C.F.R. § 3.309(e).  Under 38 C.F.R. § 3.307(a)(6), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iii).  "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id.; see also 38 C.F.R. § 3.313(a); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (upholding VA's interpretation of section 3.307(a)(6)(iii) as requiring the servicemember's presence at some point on the landmass or the inland waters of Vietnam). 

In an August 2013 written presentation, the Veteran's representative provided the names of certain individuals who she claimed could verify that the Veteran was in Vietnam during his active service.  On remand, the Veteran should be afforded the opportunity to contact those individuals and submit any supporting statements that might assist the RO in verifying the Veteran's purported Vietnam service.  

Therefore, because ischemic heart disease which includes CAD is subject to the presumptive provisions of the law as it concerns Agent Orange exposure, the Veteran's claims regarding service connection for CAD and thoracic aortic aneurysm are deferred pending verification of the Veteran's claimed service in Vietnam.

With respect to the PTSD claim, the Board finds that a VA examination is necessary.  As part of the duty to assist a Veteran in developing the facts and evidence concerning a claim, VA must provide the Veteran a medical examination for a medical nexus opinion when there is:  (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.)

Post-service medical records reflect a long history of substance abuse, and diagnoses of psychiatric disorders, including recurrent major depression and PTSD.

Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).

The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy.  If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2013).  Where, as here, the record does not establish that a Veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred.  Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred.  Cohen v. Brown, 10 Vet. App. 128, 147 (1997).

However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans.  See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010).  Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity."

The Board finds that a VA psychiatric examination is necessary to reconcile the different psychiatric diagnoses and to determine whether any current psychiatric disorder is related to service.  The Board finds that the claim must be remanded for a VA examination and medical opinion with an adequate rationale regarding the etiology of any current psychiatric disorder.  38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013).

Any additional pertinent VA or private medical treatment records must be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive, even if not actual, possession of the agency and must be obtained if the material could be determinative of the claim).  

The Board finds that the claim for entitlement to special monthly compensation based on the need for regular aid and attendance is not ripe for Board adjudication at this time as the potential outcome of the remanded claims for service connection could affect the determination of whether special monthly compensation is warranted.  Accordingly, this claim is "inextricably intertwined" with these other claims and also must be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other claim has been rendered).  

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 copies of all additional records of any relevant VA or private treatment for a psychiatric disorder, CAD, or thoracic aortic aneurysm dated since service that are not already on file.  If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e).

2.  Contact the Veteran and afford him the opportunity to submit statements from those individuals listed in the August 2013 submission by the Veteran's representative who may provide information to verify the Veteran's purported Vietnam service.

3.  If any information is received pursuant to number (2) above, then contact the appropriate service department records repository and make another attempt to verify the Veteran's claimed Vietnam service.

4.  After the above has been completed to the extent possible, schedule the Veteran for a VA mental disorders examination to determine the current nature of his psychiatric disorder, and to obtain an opinion as to whether any such disorder is possibly related to military service.  The claims folder must be made available to and reviewed by the examiner in conjunction with the examination.  All tests deemed necessary should be conducted and the results reported in detail.

Following review of the file and examination of the Veteran, the examiner should determine whether the Veteran suffers from PTSD as a result of his military service, to include any stressors identified by the RO/AMC on remand as being corroborated.  A rationale for any opinion expressed should be provided.  If PTSD is diagnosed, the examiner should identify the specific stressor(s) upon which the diagnosis is based.  If the Veteran suffers from other psychiatric disorders, the examiner should provide an opinion as to whether those disorders are at least as likely as not (50 percent probability or greater) related to service.  

Note:  The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 

If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 

The Veteran is advised that failure to report for this VA examination, without good cause, may have detrimental consequences on this pending claim.  38 C.F.R. § 3.655. 

5.  After the requested development has been completed, the AMC/RO should readjudicate the merits of the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder, CAD, and thoracic aortic aneurysm, and for special monthly compensation, based on all the evidence of record, including any additional information obtained as a result of this remand.  If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).




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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).




______________________________________________
S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs