Citation Nr: 1342385 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-04 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of primary pneumonia. 2. Entitlement to special monthly compensation based on the need for the aid and attendance of another person or housebound status. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the Veteran's appeal has since been held by the RO in Denver, Colorado. In August 2013, the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the Veteran's Virtual VA claims file. A review of the Veteran's Virtual VA claims file shows that it contains some evidence relevant to the appeal that is not also contained in the paper claims file. This evidence was reviewed by the RO prior to issuing the January 2013 supplemental statement of the case and by the Board prior to this decision. The Veteran's Veterans Benefits Management System electronic file contains no relevant evidence. Regarding the claim of entitlement to service connection for a psychiatric disorder, the Board has expanded the claim to include any psychiatric diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition, the Board has recharacterized the two issues adjudicated by the RO into one issue here that contemplates any and all psychiatric disorders, since the matters will be decided on the same basis. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On August 19, 2013, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw his appeals as to whether there is new and material evidence to reopen a claim of entitlement to service connection for residuals of primary pneumonia and entitlement to special monthly compensation. 2. The Veteran does not have a psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran as to whether new and material evidence had been received to reopen a claim of entitlement to service connection for residuals of primary pneumonia have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of an appeal by the Veteran as to entitlement to special monthly compensation based on the need for the aid and attendance of another person or housebound status have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. A psychiatric disability, to include PTSD and depression, was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeals regarding residuals of primary pneumonia and special monthly compensation and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeals. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in June 2008 that fully addressed all notice elements and was issued prior to the May 2009 initial adjudication of the claim. Accordingly, the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained service treatment records, VA outpatient treatment records, and the report of a VA examination. The Veteran also submitted lay statements, participated in an RO informal conference, and provided testimony at a Board hearing. The Veteran and his representative have not identified any outstanding records that are pertinent to the claims being decided herein that have not already been requested or obtained. The record contains only a small number of the Veteran's service personnel records, and there is a suggestion that some service treatment records may be missing. In a November 2008 response to an RO request, the National Personnel Records Center (NPRC) indicated that the Veteran's personnel file was unavailable, as it was fire-related and likely destroyed in 1973. The NPRC also indicated that these records could not be reconstructed. That same month, the RO made a formal finding that any further attempts to obtain these records would be futile. In December 2008, the Veteran was informed of these potentially missing records and asked to provide additional information for VA to attempt to locate any potentially relevant records. The Veteran responded to this request, but only addressed his back and neck claims. He had previously provided some service personnel records to the RO. The Board finds that all possible efforts were made to obtain any potentially missing service treatment and personnel records. The NPRC informed the RO that the records could not be reconstructed. Nevertheless, the RO asked the Veteran to provide additional information in an attempt to recreate these records, and he responded only as it regarded issues not on appeal here. Therefore, the Board finds that no more efforts could be made to attempt to obtain potentially missing records, and any additional action would be futile. When a Veteran's service records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). In addition, when VA is unable to produce records that were once in the government's custody an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C.A. § 5103A(b)(2). The RO complied with these requirements in the December 2008 letter, which provided the relevant information regarding the missing service records. The Veteran was afforded a VA examination in November 2009. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the examination is adequate, in that it was conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. The VA examiner provided an opinion and rationale based upon an accurate recitation of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the examiner provided no opinion as to whether a psychiatric disability was related to service, since there is no currently diagnosed acquired psychiatric disorder, the absence of this opinion is appropriate and does not affect the adequacy of the examination. Moreover, as previously noted, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked. See also 38 C.F.R. § 3.103(c)(2). In this case, the undersigned Acting Veterans Law Judge set forth the issue to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Laws and Analysis Veterans are entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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-the so-called "nexus" requirement. 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Diseases that are considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in 38 C.F.R. § 3.303(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). With "chronic disease" shown in service (or within the presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b); Groves v. Peake, 524 F.3d 1306, 1309 (2008). The regulation creating a presumption of service connection for "chronic diseases" manifesting during service or within one year of service, and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker, 708 F.3d at 1336-37. However, in the present case, there is no evidence or allegation of an enumerated "chronic disease" for the psychiatric issue. See 38 U.S.C.A. §§ 1101; 38 C.F.R. § 3.309(a); Walker, 708 F.3d at 1336-37. Thus, the Board concludes that an analysis under 38 C.F.R. § 3.303(b) for an enumerated "chronic disease" is not warranted. It follows that the Veteran also may not establish continuity of symptomatology for any chronic disease in lieu of medical nexus, as this avenue to service connection is only available for enumerated "chronic diseases," which the Veteran does not have. Walker, 708 F.3d at 1336-37. Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4125(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). 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 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). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 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). The Veteran contends that he has a psychiatric disorder due to his service. However, the Board finds, for the following reasons, that the Veteran does not have a psychiatric disability that is shown during or in close proximity to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). The RO obtained the Veteran's VA treatment records; however, they contain no treatment for a psychiatric disorder, and the Veteran testified during his Board hearing that he has sought no mental health treatment. A December 2007 VA outpatient treatment record shows that a PTSD screen was negative. An August 2008 VA record noted negative depression and PTSD screens. A July 2009 private treatment record indicates that the Veteran denied a history of depression. VA outpatient records dated in February 2011, November 2011, May 2012, and January 2013 indicate that a psychiatric screening revealed that judgment and insight were good, the Veteran was oriented, and his mood was alert. In November 2009, the Veteran underwent VA examination. The examiner reviewed the claims file, interviewed the Veteran, and conducted a full examination. The examiner stated that the Veteran did not meet the criteria for a diagnosis of PTSD or for any psychiatric condition. In addition, the examiner indicated that there were no Axis I or Axis II psychiatric diagnoses. The Veteran has not contended that this examination was in any way an inaccurate representation of his symptoms, and there is nothing in the examination report to suggest that it is inadequate. The other medical evidence of record does not indicate that the Veteran has a psychiatric disorder. When the Veteran first raised his claim in May 2008, it was one for depression and PTSD. In a 2009 statement, he indicated he suffered from depression and anxiety. Therefore, the Board presumes that he believes these are his psychiatric diagnoses. During his Board hearing, the Veteran testified that a low-flying airplane would make him nervous if he was not expecting it, he avoided large crowds, he had some trouble sleeping, and he felt down sometimes. He reported his symptomatology occurred once in a while. These are the only written or oral statements from the Veteran regarding his psychiatric symptomatology or claimed diagnosis, and there is no evidence that these are different than what he reported to the examiner in November 2009. The Board finds his reporting of symptoms to be competent and credible; his assertions of a current psychiatric disorder are not competent as a determination of whether psychiatric symptoms rise to the level of a diagnosed psychiatric disability requires specialized medical knowledge and is a complex determination unlike a diagnosis of ringing in the ears or a broken leg. Laypersons may be competent to provide an opinion regarding diagnosis, but in this particular case, the Board finds that the conclusions of a medical professional are more probative than the Veteran's lay assertions. The examiner that conducted the VA examination has specialized knowledge, education, and experience that the Veteran is not shown to have. A complete interview and evaluation was conducted and considered by the examiner. Therefore, the examination report is given more probative weight in determining whether the Veteran has a currently diagnosed psychiatric disorder than the Veteran's claim or description of his symptoms. As such, the Board concludes that the evidence indicating there is no psychiatric disorder outweighs the evidence of a current disability. In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). In order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110 or § 1131, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Id. Hence, the mere fact of a Veteran reporting symptoms does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement. In Brammer, the appellant did not produce evidence showing a presently existing disability stemming from in-service spinal meningitis or frozen feet. The appellant believed that he was entitled to benefits simply because he had a disease or injury while on active service. But Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Id. at 225. Here, as found above, the evidence preponderates against a finding that the Veteran had a currently diagnosed psychiatric disorder at any point during or in close proximity to the appeal period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997). Absent a finding of a current disability, service connection cannot be granted. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Although the Veteran has provided a detailed account of his in-service stressors, because there is no currently diagnosed acquired psychiatric disorder, to include PTSD and depression, the Board need not address the other elements required for assigning service connection. Accordingly, the Board concludes that the preponderance of the evidence is against service connection for a psychiatric disorder, to include PTSD and depression, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The appeal as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of primary pneumonia is dismissed. The appeal as to entitlement to special monthly compensation based on the need of aid and attendance of another person or housebound status is dismissed. Service connection for a psychiatric disorder, including PTSD and depression, is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs