Citation Nr: 1342264 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 07-29 672 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a spine disorder. 6. Entitlement to service connection for a colon disorder, to include as due to herbicide exposure. 7. Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. 8. Entitlement to service connection for a respiratory disorder, to include as due to herbicide exposure. 9. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 10. Entitlement to service connection for impotency, to include as secondary to PTSD. 11. Entitlement to a rating in excess of 50 percent for PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2006 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified during a September 2010 videoconference hearing before the undersigned; a transcript of the hearing is associated with the file. The case was previously remanded in November 2010. The issues of service connection for hypertension, impotency, colon disorder, respiratory disorder, bilateral knee disorder, skin disorder, and spine disorder, and a higher rating for PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran is not shown to have a current right or left ankle disorder that was incurred or aggravated in service. CONCLUSION OF LAW The criteria for service connection for bilateral ankle disorders have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in August 2005, April 2008, and January 2009 letters prior to the initial adjudications of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records and VA and non-VA records are associated with the claims file. The Veteran was also provided with VA examination. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran testified at videoconference hearing. The hearing was adequate as the undersigned explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Finally, compliance with the Board's remand directive was achieved through a November 2011 letter, obtaining additional treatment records, and arranging for a VA examination. Legal Criteria and Analysis Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Therefore, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran has a disability within the meaning of the law, for which service connection is sought. The Veteran's contends he injured his ankles during service due to helicopter jumps and his ankles have eventually become problematic. See the Veteran's June 2006 statement. The Board has reviewed all of the medical records, which date back as far as 1985, but none of them contain any diagnosis of an ankle disorder. When afforded a VA examination in March 2011, the Veteran reported multiple ankle complaints but on examination both ankles were essentially normal. Similarly, the x-ray impression for both ankles was normal. The Board has also considered the Veteran's own statements, including his hearing testimony, made in support of his claims. The Veteran is competent to report his symptoms, but he is not competent to diagnose any underlying ankle disability; therefore, his complaints, on their own, are insufficient to establish a diagnosis. As noted, no pathology was found on examination to establish a diagnosis and without proof of a disability, there is no viable claim for service connection. Under the circumstances, the preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for a right ankle disorder is denied. Service connection for a left ankle disorder is denied. REMAND The Veteran had a VA examination in March 2011 to obtain medical opinions regarding the likely etiology of the claimed disabilities to comply with the Board's November 2011 remand instructions. However, since the opinions were not adequately supported by rationale, the matters must be remanded for additional development. As the Veteran also reported a worsening of PTSD symptoms since his March 2011 VA examination, he must be given another examination to obtain current findings. In conjunction with his claim for an increased rating for PTSD, he requested that his treatment records from the Tuskegee VAMC dated from January 1, 2011 forward be obtained. This should also be accomplished. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated since November 2010. 2. Once all available medical records are received, schedule the Veteran for appropriate VA examinations. The entire claims file and a copy of this remand must be made available to the examiner(s), who must acknowledge receipt and review the records. A. All pertinent findings for each claimed disability should be fully reported and a history should be obtained from the Veteran. B. With regard to all opinions, the examiners must provide a complete explanation of the rationale used to render the opinions. A conclusory statement or merely noting conducting a claims file review and medical literature is insufficient. Laying out a factual predicate is critical in providing support for the opinion. i. Arrange for a VA orthopedic examination for the claimed bilateral knee and spine disorders and based on the examination and a review of the claims file, the examiner must respond to the following: * With regard to the right and left knee, does the Veteran have a disorder that at least as likely as not (50 percent or greater probability) had its onset during service or is otherwise related to any in-service event, injury or disease? * With regard to the spine, does the Veteran have a disorder that at least as likely as not (50 percent or greater probability) had its onset during service or is otherwise related to any in-service event, injury or disease? * In formulating the opinion, the examiner should consider the one documented right knee injury noted in service and also take into consideration the Veteran's testimony of carrying heavy packs and equipment and jumping out of helicopters since he is a combat Veteran and his statements are considered sufficient proof of service occurrence as they are consistent with the circumstances, conditions, and hardships of service. ii. Arrange for a VA examination for the claimed hypertension and impotency and based on a review of the claims file and examination, the examiner must respond to the following: * Is the Veteran's hypertension and/or erectile dysfunction at least as likely as not (50 percent or greater probability) caused by PTSD? * If not the cause of, are hypertension and/or erectile dysfunction at least as likely as not aggravated (permanently worsened beyond natural progression) by PTSD? iii. Arrange for a VA digestive examination for the claimed colon disorder and based on a review of the claims file and examination, the examiner must respond to the following: * Does the Veteran's have a colon disorder, to include polyps and diverticulosis, that at least as likely as not had it clinical onset during service or is otherwise related to any in-service disease, event, or injury to specifically include exposure to herbicides and/or drinking contaminated water? iv. Arrange for a VA respiratory examination and based on a review of the claims file and examination, the examiner must respond to the following: * Does the Veteran have a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), that at least as likely as not (50 percent or greater probability) had its clinical onset during service or is otherwise related to any in-service event, injury, or disease, to specifically include exposure to herbicides? v. Arrange for a VA skin examination and based on a review of the claims file and examination, the examiner must respond to the following: * Does the Veteran have a skin disorder, to include dermatitis and squamous cell carcinoma, that at least as likely as not (50 percent or greater probability) had its clinical onset during service or is otherwise related to any in-service event, injury, or disease, to specifically include exposure to herbicides? 3. Arrange for a VA PTSD examination to ascertain the current severity of the Veteran's PTSD. The claims files should be provided to the examiner for review. All indicated tests, studies and interviews should be conducted. A. Following examination of the Veteran, the examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to his PTSD. The examiner must conduct a detailed mental status examination. B. The examiner must also discuss the effect, if any, the Veteran's PTSD has on his social and industrial adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association : Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. C. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Ensure the remand directives have been accomplished. If any opinion or rationale is nonresponsive return it to the examiner for a supplemental statement. 5. Readjudicate the Veteran's claims. If any claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). These claims 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs