Citation Nr: 1343468	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  07-31 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for dysthymic disorder.

2.  Entitlement to service connection for hypertension. 

3.  Entitlement to service connection for chronic nosebleeds.  

4.  Entitlement to service connection for a bilateral knee disability. 

5.  Entitlement to service connection for a seizure disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Patricia Veresink


INTRODUCTION

The Veteran served on active duty from October 1975 to September 1983.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran testified at a videoconference hearing in January 2011 before the undersigned Veterans Law Judge.  

The Board remanded the issues in April 2011 to afford the Veteran a VA examination and nexus opinion.  The opinions were provided in April and May 2011 with subsequent addendum in October 2012.  Regarding the psychiatric claim, in light of the grant of service connection in the decision below, the Board finds that the Veteran is not prejudiced by any.  Regarding the issues of hypertension and nosebleeds, the Board finds that the examiners reviewed the Veteran's claims file, performed a physical examination, and provided the requested opinions.  Therefore, the Board's directives have been substantially complied with.  Regarding the knee and seizure issues, the Board requested an opinion as to whether the disabilities manifested to a compensable degree within one year of separation from service.  The examiners did not provide the requested opinions.   Therefore, an additional remand is not required to ensure compliance with the Board's directives regarding those issues.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran's bilateral knee disability and seizure disorder claims 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.


FINDINGS OF FACT

1.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's dysthymic disorder had its onset during service.   

2.  The preponderance of the evidence shows that the Veteran's hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin.

3.  The preponderance of the evidence shows that the Veteran's current chronic nosebleeds were not present in service or until many years thereafter and is not related to service or to an incident of service origin.


CONCLUSIONS OF LAW

1.  The criteria for service connection for dysthymic disorder have been met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

2.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).

3.  The criteria for service connection for chronic nosebleeds have not been met.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through a VCAA letter dated September 2005 the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection.  He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Further, the 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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).    

The VCAA letter to the Veteran was provided in September 2005 prior to the initial unfavorable decision in February 2006.  In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the September 2005 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA examination reports, VA treatment records, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Veteran was afforded VA examinations in June 1997, July 1997, March 2010, April 2010, May 2010, June 2010, September 2010, April 2011, and May 2011, with an addendum opinion provided in October 2012.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings.  As such, the examination reports with the addendum opinion are adequate to decide the claims of service connection for a psychiatric disability, hypertension, and chronic nosebleeds.  Thus, further examination is not necessary regarding those issues.

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  In this case, he specifically noted the Veteran's statements regarding treatment for his disabilities in 1987 after separation from service.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  

Service Connection - Laws and Regulations

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309.

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")  Pertinent to the case at hand, hypertension is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  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.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

The Board has reviewed all the evidence in the record.  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).

Service Connection - Dysthymic Disorder

The Veteran was afforded a VA examination in April 2011.  The examiner reviewed the claims file, performed a thorough psychiatric examination, and diagnosed dysthymic disorder.  The examiner determined that it is at least as likely as not that the Veteran's dysthymic disorder is related to or had its onset during service.  The examiner noted no claims file evidence to indicate that the Veteran was treated for depression/dysthymia during service, but noted that by the Veteran's report he believed that his symptoms occurred during his military service period.  The examiner also noted that the Veteran's alcohol dependence had its onset during service as evidenced by a DWI while in service.  

The Board finds that the Veteran has competently testified as to onset of crazy dreams and alcohol dependence, to include a retrospective belief that those symptoms were part of his current mental disability.  He acknowledged that he received no treatment during service.  

The Board notes that there is no contrary evidence of record.  When asked for an opinion the June 2010 VA examiner and the October 2012 VA examiner noted that they could not provide an opinion without resorting to speculation.  Therefore, the only opinion of record is the April 2011 VA examination, which relies on a factually accurate background from the Veteran.  Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for dysthymic disorder is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Service Connection - Hypertension

The Veteran contends that he has hypertension that began during service.  Service treatment records show no diagnosis, treatment, or complaints of high blood pressure.  The Veteran's blood pressure readings during service were as follows:

DATE
Dec. 1977
Jan. 1978
Feb. 1978
Jan. 1980
May 1980
May 1980
July 1981
Nov. 1982
BP
110/70
130/70
116/88
118/84
130/88
134/74
130/84
130/72

Post-service, an October 1985 Reserve report of medical examination, two years after separation from service, showed a blood pressure reading of 140/90.  On the corresponding report of medical history, the Veteran noted no history or current complaints of high blood pressure.  

In his January 2011 hearing before the Board, the Veteran reported that he was first told he had hypertension in 1987 when he was treated for nosebleeds.  Later in the hearing, he states that he was diagnosed with hypertension for the first time in 1991.  

While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) referred to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) for guidance.  In footnote 4 of Jandreau, the Federal Circuit indicated that the complexity of the claimed disability is to be considered in determining whether lay evidence is competent.  As to a nexus opinion relating the Veteran's current hypertension to his service, the Board finds that the etiology of the Veteran's hypertension is too complex an issue, one typically determined by persons with medical training, to lend itself to lay opinion evidence.  

The Veteran is certainly competent to testify as to symptoms that are non-medical in nature; however, he is not competent to opine as to the etiology or onset of the disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also, Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis).  No medical evidence of record shows a relationship between his hypertension and his service.

The Board acknowledges the VA doctor's statements in May 2010 and January 2011 stating that he reviewed the Veteran's service medical records and finds that his hypertension was incurred during his military service and was treated during active duty and continuity of symptoms from service date to present.  This statement is unsupported by any rationale.  Additionally, it relies on inaccurate facts.  The record does not indicate that the Veteran was treated for hypertension during service.  Rather, the Veteran has specifically stated that treatment did not begin until 1991.  The Board may reject a medical opinion that is based on facts provided by the appellant that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the appellant that formed the basis for the opinion.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).

The Veteran was afforded two VA examinations regarding his hypertension.  The examiner in May 2010 found that the Veteran's hypertension was not caused by or a result of military service.  He noted no military diagnosis of hypertension and a mildly elevated blood pressure post-service in 1985.  The examiner noted that one elevated blood pressure reading does not constitute a diagnosis of hypertension, as a diagnosis of hypertension is made when blood pressure is elevated on at least three separate occasions.  The examiner cited literature to support his findings.  In May 2011, the examiner again reviewed the Veteran's service treatment records and found that the Veteran's hypertension was less likely than not caused by or a result of military service.  She noted that the claims file was negative for elevated blood pressure, treatment for, or diagnosis of hypertension during service.  

Upon review of the evidence, the Board is left with a record that fails to show any in-service disease or injury to which the claimed disability is competently indicated to be related, or which shows chronic symptoms of hypertension since service or within a year after separation from service.  The Board also finds that the diagnosis and etiology of hypertension are not capable of lay observation.  The Board finds the multiple negative medical opinions to be of more probative value than the Veteran's unsupported lay statements and the unsupported positive nexus that is based on an inaccurate factual background.  Thus, as the preponderance of the evidence is against the claim for service connection for hypertension, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection - Nosebleeds

The Veteran asserts that he has a chronic nosebleed disability that is causally related to service.  Service treatment records show one complaint of a nosebleed during service in conjunction with cold in November 1982.  The records show no other complaints, treatment, or diagnosis.  

In the January 2011 hearing, the Veteran reported nose bleeds constantly after separation from service, but did not note more than one nosebleed during service.  During the May 2010 VA examination, the Veteran reported frequent nosebleeds during service for which he presented to sick call and was given orders for quarters on several occasions.  During the May 2011 VA examination, the Veteran claimed he awoke with a nosebleed in 1976, presented to sick call, and was told that he overheated.  He did not report additional nosebleeds or sick call reports.  

Although nosebleeds are certainly capable of lay observation, the underlying cause relating his current nosebleeds to the single documented nosebleed requires medical expertise.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  In May 2010, the VA examiner reviewed the Veteran's treatment records and lay statements.  He noted the Veteran's history of cocaine use.  He opined that his chronic nosebleeds are less likely than not caused by or a result of service.  He noted only one nosebleed during service that was associated with cold symptoms and a viral syndrome.  The May 2011 examiner also opined that the Veteran's chronic nosebleeds are less likely as not caused by or a result of in-service nosebleeds.  The examiner found that one nosebleed during service does not establish chronicity or military causation.  The record contains no military documentation that the nosebleeds occurred on a chronic basis.  

Again, the Board acknowledges the VA doctor's statements in May 2010 and January 2011 stating that he reviewed the Veteran's service medical records and finds that his nosebleeds were incurred during his military service and were treated during active duty and continuity of symptoms from service date to present.  This statement is unsupported by any rationale.  The Board notes that the examiner made a blanket statement regarding the Veteran's seizures, hypertension, and nosebleeds.  The Board previously found that the statement was based on an inaccurate factual background regarding the Veteran's hypertension.  Although the Veteran was treated for one nosebleed during service, the Board finds the statements to be of less probative value than the VA examination findings.  The examiner did not differentiate between the Veteran's three disabilities, which all have significantly different factual backgrounds.  Additionally, he did not provide a rationale for his opinion or a basis for his findings.  

Although the Veteran states he has a chronic nosebleed disability related to service, the Board finds that the medical examiners' opinions are of more probative value than his lay statement and the unsupported positive nexus opinion.  The Board thus finds that the preponderance of the evidence is against the claim.  As such, the benefit of the doubt rule does not apply.  38 U.S.C.A. 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for dysthymic disorder is granted.

Service connection for hypertension is denied. 

Service connection for chronic nosebleeds is denied.  


REMAND

The Board remanded the issues of service connection for seizures and a bilateral knee disability in April 2011 to obtain a VA examination and nexus opinion.  The Veteran attended a VA examination in May 2011.  The examiner provided a thorough physical examination, but did not provide the requested opinion regarding whether the Veteran's arthritis of the knees manifested within one year of separation from service.  Additionally, the examiner was to determine if the Veteran's seizure disorder was a manifestation of a neurological disorder and whether any such neurological disorder manifested within one year of separation from service.  She did not provide the requested opinion.  Without the requested opinions, a review of the record indicates that the Board's directives were not substantially complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Therefore, the claims must be remanded to obtain an addendum opinion regarding the etiology of the Veteran's seizure disability and arthritis of the knees.  

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service seizures and bilateral knee symptoms.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  VA should obtain and associate with the claims file all outstanding VA treatment records.  If such records cannot be obtained or if no such records exist, the RO should document such findings.  

3.  After associating all pertinent outstanding records with the claims file, return the claims file to the May 2011 VA examiner.  If the examiner is not available, then schedule the Veteran for a VA examination regarding a seizure disorder and a bilateral knee disability.  The examiner must address the following questions:

a.)  Is it at least as likely as not that the Veteran's bilateral knee disability had its onset during service or within one year of separation from service, or was otherwise causally related to service?  The examiner should address the Veteran's competent and credible statements regarding his physical activities while in the military.

b.)  Is it at least as likely as not that the Veteran's seizure disorder had its onset during service or within one year of separation from service, or was otherwise causally related to service?  The examiner should indicate the underlying cause for the seizure disorder.  

All findings and conclusions should be set forth in a legible report.

3.  Then readjudicate the appeal.  If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs