Citation Nr: 1408856 Decision Date: 02/28/14 Archive Date: 03/10/14 DOCKET NO. 08-18 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chest pain. 2. Entitlement to service connection for arthritis of the shoulders. 3. Entitlement to service connection for memory loss. 4. Entitlement to service connection for a sciatic nerve condition. 5. Entitlement to service connection for neuropathy of the upper extremities. 6. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1957 to April 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran's claims were remanded in a May 2012 decision by the Board for further development. Specifically, the Board sought outstanding medical records, VA examinations for several of the Veteran's claimed conditions, and issuance of a Statement of the Case (SOC) regarding the Veteran's lower back claim pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). There has been at least substantial compliance with the remand directives and the Board will adjudicate the Veteran's appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Originally, the Veteran also claimed entitlement to service connection for an upper back condition, a lower back condition, and left shoulder drop. Following VA compensation and pension examinations performed pursuant to the May 2012 remand, these claims were granted via an October 2013 rating decision. The back conditions were combined and recharacterized as "thoracolumbar spine degenerative changes." The Board acknowledges that following the May 2012 remand and issuance of an SOC for his claim of entitlement to service connection for a low back condition, the Veteran indicated in his July 2012 VA Form 9 substantive appeal that he wanted a hearing regarding his low back condition. He never received this hearing. However, since this specific claim has been granted, he has not been prejudiced by this error and the Board is continuing with the adjudication of the remaining issues on appeal. Although the Veteran is receiving payments from the Social Security Administration (SSA), these payments appear to be due to the Veteran's age and not due to his disability. Furthermore, the Veteran reported in his original claim with VA that he was not receiving disability benefits from SSA. See Veteran's Application for Compensation and/or Pension dated March 2007, Part D. For these reasons, no development is needed to obtain documents from SSA. The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO.\ Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran suffered a gunshot wound to the neck in service. 2. The Veteran does not currently have a sciatic nerve disorder; a psychiatric disorder, including PTSD; or a disability manifested by memory loss. 3. The Veteran has chest pain symptoms that have been associated with his lung cancer and accompanying treatment. 4. The Veteran has diagnoses of arthritis of the shoulders and peripheral neuropathy of the upper extremities; however, these disabilities did not have their onset during service and are not related to any in-service disease, event, or injury and were not caused or aggravated by any of his service-connected residuals of a gunshot wound. CONCLUSIONS OF LAW 1. The criteria for service connection for chest pain have not been met. 38 U.S.C.A. § 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013) 2. The criteria for service connection for arthritis of the shoulders have not been met. 38 U.S.C.A. §§ 1131, 1137 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013) 3. The criteria for service connection for memory loss have not been met. 38 U.S.C.A. § 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013) 4. The criteria for service connection for a sciatic nerve condition have not been met. 38 U.S.C.A. § 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013) 5. The criteria for service connection for neuropathy of the upper extremities have not been met. 38 U.S.C.A. § 1131 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013) 6. The criteria for service connection for a psychiatric disorder, including PTSD, have not been met. 38 U.S.C.A. §§ 1131, 1137 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.310 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The 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 provide with the relevant notice and information in a March 2007 letter prior to the initial adjudication of his claims, which included not only information on establishing service connection, but secondary service connection as well. 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, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed conditions. VA's duty to assist with respect to obtaining relevant records and examinations has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). II. Service Connection Claims Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. "To establish a right to compensation for a present disability, a claimant must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an 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.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain conditions, including arthritis and psychoses, will be presumed to have been incurred in service if manifested to a compensable degree, generally meaning to at least 10-percent disabling, within one year after discharge from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In this case, the evidence does not show any arthritis or psychoses diagnosis in service or in the year following discharge, thus the presumptive service connection is not applicable. Alternatively, service connection can be granted on a secondary basis. For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). With regard to the issue of secondary service connection, the Board notes that in 2006 VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent of the amendment was to conform to the regulation in Allen v. Brown, 7 Vet. App. 439 (1995), the Court decision that clarified the circumstances under which a Veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. See 71 Fed. Reg. 52,744 (September 7, 2006). In this regard, 38 C.F.R. § 3.310 was changed to note that aggravation will not be conceded unless the baseline level of severity, of the non-service connected disability, is established by medical evidence. The level of aggravation will be determined by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. That revised regulation, as noted above, implemented the holding in Allen for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See Allen at 448; 71 Fed. Reg. 52744 (2011). In order to grant a claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the claimant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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). 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, at 1376-77 (Fed. Cir. 2007). With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Memory Loss, Sciatic Nerve Condition, Chest Pain, and a Psychiatric Disorder, including PTSD The Veteran contends that he possesses memory loss, a sciatic nerve condition, chest pain, and PTSD, all of which he claims are attributable to his time in service. Specifically, he is claiming that the memory loss, sciatic nerve condition, and chest pain are related to his in-service gunshot wound and the residuals thereof. He is claiming entitlement to service connection for PTSD based on the in-service stressor of experiencing the gunshot wound. The referenced gunshot wound occurred in January 1958. The STRs indicate that the bullet entered the "right posterior cervical area" and exited the Veteran's left cheek, fracturing his left mandible. The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The evidence does not show that the Veteran has current diagnoses of a sciatic nerve condition; a psychiatric disorder, including PTSD; or a disability manifested by memory loss. At his most recent August 2012 VA examination, the examiner specifically indicated that the Veteran's sciatic nerve was normal on both sides and denied any related disabilities. Similarly, at the Veteran's September 2007 VA (QTC) examination, the examiner did not diagnose the Veteran with a mental condition. There, the examiner concluded, "[the Veteran] does not meet the diagnostic criteria of PTSD according to DSM IV because even though he has a few symptoms of PTSD...the symptoms are not severe enough to interfere with his social and occupational functioning." On Axis I, the examiner wrote that there was no diagnosis. In addition, while the Veteran has exhibited memory loss symptoms during the pendency of his appeal, these symptoms have never been attributed to a diagnosis of any kind. Memory loss by itself is not a disability for which service connection can be granted. The Veteran has not presented any competent and credible evidence of a diagnosis for any of these conditions. He is competent to describe his symptoms, but he is not competent to provide a medical diagnosis as a lay person. With regard to the Veteran's chest pain, the examiner who performed his August 2012 examination stated it was a symptom associated with his diagnosis and treatment of lung cancer, which occurred nearly 50 years after discharge. The Veteran has never made a claim for service connection for his lung cancer. The examiner stated that the Veteran's in-service respiratory-related chest pain, noted in his STRs in July and November 1960 as involving pleurisy and an upper respiratory infection, resolved long ago. He stated that the Veteran's lung cancer which was caused his current chest pain was not related to the chest pains and pleurisy which were described 50 years ago in service. He also ruled out the chest pain/lung cancer being caused or aggravated (beyond normal progression) by any of the Veteran's service-connected conditions resulting from his gunshot wound. A reasonable doubt does not exist regarding these claims. There is not an approximate balance of positive and negative evidence. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Arthritis of the Shoulders At his August 2012 VA examination, the Veteran was diagnosed with arthritis in both shoulders. This was confirmed by imaging performed at the examination. Thus, he has satisfied the current diagnosis prong of establishing service connection. The Veteran's STRs are silent on any in-service injury to his shoulders and the 1958 gunshot wound did not directly affect them. He has not provided any narrative about injuring his shoulders in-service besides linking the condition to his in-service gunshot wound, or, alternatively, the service-connected residuals thereof. His March 1961 separation examination did not note any shoulder disability. At the August 2012 examination, the examiner stated that the Veteran's bilateral shoulder arthritis was less likely than not (less than 50 percent probability) incurred in or caused by his time on active duty. The reasoning given was that the Veteran had no documented arthritis or shoulder-related injury in his STRs. The examiner further opined that the arthritis was less likely than not (less than 50 percent probability) proximately due to or the result of any of the Veteran's service- connected disabilities stemming from his gunshot wound. She stated that shoulder arthritis was not caused by facial scars, jaw abnormalities, or a neck injury. Additionally, the examiner ruled out causation by the Veteran's spinal accessory nerve or upper back arthritis (both conditions were on appeal and granted after the VA examination). Finally, the examiner opined that the Veteran's shoulder arthritis was not at least likely as not aggravated beyond its natural progression by any of his service-connected disabilities, stating there was a complete absence of supporting evidence to support this contention. As the Veteran has presented no competent evidence establishing an etiological relationship between his shoulder arthritis directly to service, or in the alternative, to any of his service-connected disabilities on a secondary basis, the preponderance of the evidence is against his claim. Thus, the benefit of the doubt rule does not apply and his claim is denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Neuropathy of the Upper Extremities At his August 2012 VA examination, the Veteran was diagnosed with peripheral neuropathy and spinal accessory neuropathy. The examiner indicated that these conditions affected the Veteran's upper extremities in the form of mild paresthesias (and/or dysesthesias) and mild numbness, and further indicated that the Veteran's radial, media, and ulnar nerves, along with his left upper radicular group were affected. The Veteran's STRs do not contain any neuropathy diagnosis with regards to his upper extremities, nor has he provided any narrative about the condition. He and his representative have variously linked his neuropathy to his in-service gunshot wound or alternatively, to the service-connected residuals thereof. The August 2012 examiner opined that the Veteran's peripheral neuropathy was less likely than not (less than 50 percent probability) incurred in or caused by his gunshot wound. The examiner stated that while the Veteran did exhibit symptoms of neuropathy, most notably in his hands, this could be due to multiple other causes such as chemotherapy. She further stated, "[t]here is no evidence of peripheral neuropathy as a neurological sequela of the [Veteran's gunshot wound] as related in the [STRs]." She stated that subsequent to the gunshot wound, there was no evidence of damage to the spinal cord or any other major neurological deficits. Furthermore, she stated that peripheral neuropathy was not even caused by spinal cord or nerve root damage, but rather by systemic disease such as diabetes, vitamin B12 deficiency, toxins, or thyroid deficiency. The examiner further opined that the peripheral neuropathy was less likely than not (less than 50 percent probability) proximately due to or the result of any of his service-connected conditions. She also opined that the condition was less likely than not aggravated beyond its normal progression by any of the Veteran's service- connected conditions. She again attributed these opinions to the fact that the symptoms the Veteran's exhibited could be caused by any number of things, such as his chemotherapy. She also stated that there was no evidence any causation or aggravation beyond natural progression at all in the Veteran's file. As the Veteran has presented no competent evidence establishing an etiological relationship between his peripheral neuropathy directly to service, or in the alternative, to any of his service-connected disabilities on a secondary basis, the preponderance of the evidence is against his claim. Thus, the benefit of the doubt rule does not apply and his claim is denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for chest pain is denied. Entitlement to service connection for arthritis of the shoulders is denied. Entitlement to service connection for memory loss is denied. Entitlement to service connection for a sciatic nerve condition is denied. Entitlement to service connection for neuropathy of the upper extremities is denied. Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder, is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs