Citation Nr: 1343082 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-24 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a stroke. 3. Entitlement to service connection for a skin disability, to include as secondary to herbicide exposure. 4. Entitlement to service connection for a low spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to September 1965. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In July 2010, the Board denied entitlement to service connection for a lung disability, a stomach disability, a bladder disability and tooth loss, for compensation purposes. At that time, the Board also remanded the remaining claims for further development. As to the issue of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure, there has not been substantial compliance with the Board's remand directives. All other development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to service connection for a skin disability, to include as secondary to herbicide exposure is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a decision of March 1997, the RO denied the claim of service connection for an acquired psychiatric disability other than PTSD (characterized as a neuropsychiatric condition) on the basis that the condition was not incurred in service; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 2. The additional evidence since the RO's decision in March 1997 does not relate to an unestablished fact necessary to substantiate the claim or is cumulative of the evidence of record. 3. Residuals of a stroke are not caused by a service-connected disability; were not incurred in service; and are not related to an event, injury, or disease in service. 4. A low spine disability was not affirmatively shown to have been present during service; a low spine disability did not manifested to a compensable degree within one year from the date of separation from service in September 1965; and a low spine disability, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is not related to an injury, disease, or event in service. CONCLUSIONS OF LAW 1. The March 1997 RO decision, which denied the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1996). 2. The criteria to reopen the claim of service connection for an acquired psychiatric disability other than PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.156 (2013). 3. The criteria for service connection for residuals of a stroke have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 4. The criteria for service connection for a low spine disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA 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. Letters dated in June 2005, November 2005, June 2008, and October 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of the general criteria for establishing disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, pursuant to the Board's July 2010 remand, the Veteran was also notified of the evidentiary requirements necessary to reopen a previously-denied claim, and of what evidence would be new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claims, the claims were properly re-adjudicated in a December 2011 supplemental statement of the case which followed the adequate notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). In regard to the duty to assist, the Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. Pursuant to the July 2010 remand, more recent VA treatment records were obtained. The Veteran has not identified any outstanding private or VA treatment records pertinent to the appeal. As to the issue of entitlement to service connection for a low spine disability, a VA examination was conducted in August 2010; the record does not reflect that this examination was inadequate for deciding the claim. See 38 C.F.R. § 3.159(c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). As to the issue of entitlement to service connection for residuals of a stroke, VA must provide a VA medical examination or obtain a medical opinion if the evidence of record is insufficient to decide the claim. While there is evidence of a current disability, the evidence does not indicate that the claimed disability may be associated with an established event, injury, or disease in service. For this reason, a VA medical examination or medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, although a VA examination was not provided in connection with the claim to reopen, the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As discussed in detail in the analysis section, the Veteran's psychiatric disability claim has not been reopened; thus, an examination is not required. Therefore, the duty to assist has been met. II. Claim to Reopen A. Legal Principles The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (West 2002). Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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) (2013). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). B. Analysis In a decision of March 1997, the RO denied the claim of service connection for an acquired psychiatric disability other than PTSD (then characterized as a neuropsychiatric condition) on the basis that the condition was not incurred in service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision, and no new and material evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran. The rating decision by the RO in March 1997 became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (1996). At that time, the evidence of record consisted of service treatment records, VA psychiatric treatment records, private psychiatric treatment records, and the Veteran's statements. In May 2005, the Veteran filed a claim of service connection for an affective disorder with major depression. Then characterized as an original claim of service connection, the claim is properly construed as an application to reopen a claim of service connection for an acquired psychiatric disorder other than PTSD because it is a claim for the same disability even if phrased differently. Notably, PTSD has been separately adjudicated. In a February 2006 rating decision, the RO denied the claim on the basis that a psychiatric disorder was not incurred in service. The RO considered service treatment records, VA psychiatric and medical treatment records, and the Veteran's statements. In order that the evidence submitted after the last, final denial may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. The claim was previously denied in March 1997 on the merits because the evidence of record failed to show that an acquired psychiatric disability other than PTSD was incurred in service. The additional evidence presented since March 1997 includes VA psychiatric treatment records, which diagnosed major depressive disorder, and the Veteran's statements, which related his psychiatric disorder to childhood abuse, marital problems, and events in service. This additional evidence is cumulative of the evidence of record at the time of the last final decision in March 1997, namely, private psychiatric treatment records dated in March 1990, which diagnosed major depressive disorder and the Veteran's statements in October 1996, which related his psychiatric disorder to marital problems and events in service. This evidence is not new under 38 C.F.R. § 3.156(a) because it does not relate to an unestablished fact necessary to substantiate the claim and it is cumulative of the evidence of record. For these reasons, the Board concludes that new and material evidence has not been received; hence, the requirements to reopen the claim of service connection for an acquired psychiatric disability other than PTSD have not been met, and the appeal must be denied. As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection A. Legal Principles A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability if it is proximately due to or the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). Several legal theories operate in conjunction with 38 U.S.C.A. 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. This may be accomplished an affirmative showing of inception during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at that time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). This avenue for substantiating a claim is only available for the chronic diseases listed in 38 C.F.R. § 3.309(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1101, 1112 (West 2002 & Supp. 2013) 38 C.F.R. §§ 3.307, 3.309 (2013). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a broken bone); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). B. Analysis 1. Residuals of a Stroke As to the claim of service connection for residuals of a stroke, the Veteran contends that a July 2004 stroke was caused by a psychiatric disability. Service treatment records show no complaint, finding, history, symptoms, treatment, or diagnosis of a stroke. Post-service VA treatment records show that the Veteran suffered a stroke in 2004. On the basis of the Veteran's statements and service treatment records, a stroke or residuals of a stroke were not affirmatively shown to have been present during service. Service connection under 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. As a stroke is not a chronic disease listed in 38 C.F.R. § 3.309, presumptive service connection on the basis of 38 C.F.R. §§ 3.303(b) and 3.307 is not applicable. To the extent the Veteran's stroke is consistent with brain thrombosis or hemorrhage, which are listed, the evidence does not show that it was noted as less than chronic in service or that it manifested to a compensable degree within one year of service. The earliest indication of the stroke is in 2004, which was many years after service. The claim of service connection for residuals of a stroke must fail on the basis of secondary service connection to a psychiatric disability because a psychiatric disability has not been service connected. 38 C.F.R. § 3.310. Service connection on a secondary presupposes the existence of an underlying service-connected disability, which is not the case here. Nonetheless, service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran does not contend and the medical evidence of record does not suggest that a stroke was incurred in service. As noted previously, his primary contention is that his stroke is related to a psychiatric disability. No in-service injury, disease or event has been identified or evidenced by the record to which the stroke could possibly be related. The preponderance of the evidence is against the claim for service connection for residuals of a stroke; there is no doubt to be resolved; and service connection for residuals of a stroke is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 2. Low Spine Disability As to the claim for service connection for a low spine disability, the Veteran contends that his current disability is related to military service. He asserts that he has experienced back pain since an accident in 1965. While service treatment records are negative for any complaints or findings of a low spine disability, post-service treatment records show that the Veteran has a current lumbar spine disability. A disability evaluation report conducted by the Indiana Dept. of Human Services in February 1993 shows that the Veteran gave a history of back pain since 1985, which he attributed to his job as a prison guard. An August 2004 VA clinical record shows that the Veteran gave a history of back pain since 1965, when he injured his spine onboard a ship during service. On VA examination in August 2010, the Veteran gave a history of back pain since an accident during service in 1965. The diagnosis was chronic degenerative changes of the lumbar spine. The VA examiner expressed the opinion that it is less likely as not that the current spine disability is caused by or a result of active service. The rationale was that chronic degenerative changes of the lumbar spine are common for someone the Veteran's age and with his body habitus, and the condition was not caused by any specific exposure or injury. The Veteran is competent to describe back pain in service and since service, which is within the realm of his personal experience. 38 C.F.R. § 3.159; see Layno, 6 Vet. App. at 469-71. However, any statement to the effect is belied by inconsistent statements made for the purpose of obtaining disability compensation from the state of Indiana in 1993. At that time, back pain was attributed to work as a prison guard with an onset of 1985. As the Veteran's credibility is at issue before the Board, his description of back pain since service is afforded little probative value and service connection is not warranted under the theory of continuity of symptomatology for arthritis. As the available service treatment records do not show any treatment, diagnosis, or x-rays suggestive of degenerative changes of the back, the evidence is inconclusive to award service connection on the basis of affirmatively showing inception of a low spine disability, currently diagnosed as degenerative changes of the back, in service under 38 C.F.R. § 3.303(a). Even when considering that the Veteran had an in-service injury to the back in 1965, the question is whether there is a nexus relationship between the claimed fall in service and the current low spine disability. Competent and credible evidence is still required to establish the current disability and nexus to service. As noted previously, service connection may be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). One aspect is whether the Veteran, as a lay person, is competent to offer an opinion as to a causal relationship or nexus between the current degenerative changes of the back and a fall in service. The Veteran, as a lay person, is competent to offer an opinion on a simple medical condition. Davidson, 581 F.3d at 1316. The Veteran as lay person is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1376-77. Degenerative changes of the spine is not simple medical condition capable of the Veteran's lay observation, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to identify degenerative changes of the spine. Also degenerative joint disease or arthritis is not a type of condition under case law that has been found to be capable of lay observation. See Falzone, 8 Vet. App. at 405 (flatfeet are capable of lay observation); Charles, 16 Vet. App. at 374 (tinnitus is capable of lay observation); Barr, 21 Vet. App. at 308-09 (varicose veins are capable of lay observation) Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, 492 F.3d at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, degenerative changes of the spine is more analogous to an internal process such as rheumatic fever than flatfeet, tinnitus, varicose veins, or a broken leg. For this reason, degenerative changes of the spine are not a type of condition under case law that has been found to be capable of lay observation. As degenerative changes of the spine is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. No factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion as to the etiology of the current degenerative changes of the spine. For these reasons, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between the current disability and an injury in service. To this extent, his lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to his claim. As the evidence is not admissible, the Board need not reach the credibility of the evidence. The competent medical evidence of record pertaining to causation or a nexus to service consists of the VA examination report dated in August 2010. In the August 2010 VA examination report, the VA examiner expressed the opinion that it is less likely as not that degenerative changes of the spine are related to any specific exposure or injury. This opinion constitutes competent and persuasive medical evidence against the claim. It was based on a review of the claims file and a physical examination, and the opinion is supported by the record. Here, there is no competent lay evidence pertaining to a nexus between the current disability and an injury, event, or disease in service, including any injury, and the medical evidence weighs against the nexus element of the claim. Thus, the Board finds that the preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a low spine disability is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The application to reopen the claim of service connection for an acquired psychiatric disability other than PTSD is denied. Service connection for residuals of a stroke is denied. Service connection for a low spine disability is denied. REMAND The Board finds it necessary to remand the claim of service connection for a skin disability for additional development. An August 2010 VA skin examination report does not substantially comply with the directives of the Board's July 2010 remand instructions, reexamination is needed. Stegall, 11 Vet. App. at 271; Stefl, 21 Vet. App. at 123. The examiner indicated that the Veteran's current sebaceous cysts are not caused by any specific exposure. However, the opinion did not discuss whether the Veteran has a current skin disability that is related to the skin problems that he was treated for during service as requested by the examination. In addition, the Veteran may receive regular treatment through VA facilities. Updated treatment records should be obtained in light of the remand. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's more recent VA treatment records (since December 2011) and associate the records with the claims folder. 2. Thereafter, afford the Veteran a VA skin examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the Veteran's current skin disability is related to an event, injury, or disease in service. In formulating the opinion, the VA examiner is asked to consider the following: (a) the Veteran's "current skin disability" includes any skin disability after October 1996 (e.g., VA medical records show a dermatofibroma-like lesion in October 2004 and dermatitis in May 2003, April 2005, and December 2007); and (b) service treatment records show maculopapular rash on the Veteran's face and trunk in August 1963; a four week history of pruritic rash in his groin area in June 1965; and jock rash in July 1965. The Veteran's file must be provided to the VA examiner for review. A complete rationale should be provided for any opinions and conclusions reached. 3. Finally, after the above development and any other development deemed necessary, readjudicate the remaining claim on appeal. If the benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs