Citation Nr: 1410125 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-48 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for acquired psychiatric disorder, to include bipolar disorder, anxiety, and severe depression. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for osteoarthritis, left hip. 4. Entitlement to service connection for atherosclerotic vascular calcification, to include as secondary to left hip osteoarthritis or a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Donahue, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeals from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a causal link between the Veteran's currently diagnosed psychiatric conditions and active service or any in-service risk factors, aside from drug abuse, which constitutes misconduct. 2. Left hip osteoarthritis was not manifest in service or within one year of service, and is unrelated to service or service-connected disability. 3. Atherosclerotic vascular calcification was not manifest in service and is unrelated to service or service-connected disability. CONCLUSIONS OF LAW 1. Service connection for an acquired psychiatric disorder other than PTSD is denied to include as based on willful misconduct. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2013). 2. Service connection for PTSD is denied to include as based on willful misconduct. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304 (2013). 3. Left hip osteoarthritis was not incurred in or aggravated by service or service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2013). 4. Atherosclerotic vascular calcification was not incurred in or aggravated by service or service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in October 2009, June 2010, and March and December 2011 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). In this case, the Board notes that the Veteran was provided VA joints examinations in November 2009 and January 2011. The examinations were thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for a left hip disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Although VA did not provide the Veteran examinations for evaluation of the psychiatric and vascular claims, the Board finds that a VA examination is not required here as there is no credible lay evidence or competent medical evidence indicating that the Veteran had a vascular or psychiatric disorder in service or that any current vascular or psychiatric disorder is associated with service. 38 C.F.R. § 3.159. See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Legal Criteria The Veteran claims that he has an acquired psychiatric disorder caused by active service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, 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 Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is 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 include 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). 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); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Service Connection - Psychiatric Claims The evidence reflects that the Veteran has current diagnoses of bi-polar disorder and PTSD. Having reviewed the complete record, however, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's current acquired psychiatric disorders were incurred in or otherwise related to his military service. Initially, the Veteran asserts he has an acquired psychiatric disorder due to his frequent drug use in service. The Veteran has a diagnosis of bi-polar disorder as noted in a July 2009 VA progress note. He has also claimed service connection for PTSD. An advanced practice nurse noted a diagnosis of PTSD with nightmares during an October 2010 private evaluation. The Veteran's reported stressor was the overdose of drugs while in service. Applicable regulations provide that no compensation shall be paid if the disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002 & Supp. 2013). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301 (2013). The Board acknowledges the argument of the Veteran's representative that the in-service drug use should not be considered willful misconduct because the evidence does not establish that his use rose to the level of drug abuse or drug addiction. The representative points to provisions of 38 C.F.R. § 3.301 wherein the regulation provides that the isolated and infrequent use of drugs by itself will not be considered willful misconduct, but that the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. The Board notes, however, that there is ample medical evidence of record establishing that the Veteran has a long history of substance abuse, and by the Veteran's own admission, that history began with the frequent use of drugs while on active duty. Given the Veteran's own description as to his frequent drug use in service, to include an incident of overdose, and the corroborating medical evidence noting a history of substance abuse spanning several decades, the Board concludes that the lay and medical evidence supports the conclusion that his in-service drug use constitutes willful misconduct and cannot service as a basis of an award of service connection. Though the Veteran has a current diagnosis of an acquired psychiatric disorder, there is no indication that the Veteran had an acquired psychiatric disorder, to include PTSD, during active service, and the Veteran has not asserted as such. A September 1977 separation examination noted psychiatric evaluation as normal. The first complaint of an acquired psychiatric disorder was in April 2009, more than 30 years after separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a psychiatric disorder weighs heavily against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Significantly, the record also includes no competent medical opinion establishing a nexus or medical relationship between a current acquired psychiatric disorder diagnosed post-service and events during the Veteran's active service, other than the Veteran's in-service drug abuse. Neither the Veteran nor his representative have presented, identified, or alluded to the existence of, any such opinion. Consequently, the Board finds that entitlement to service connection for a current acquired psychiatric disorder is not warranted. Finally, the Board notes that the Veteran asserted in a November 2010 substantive appeal, that his hepatitis C could have caused most, if not all, of his mental disorders. However, as the Veteran is not currently service connected for hepatitis C, service connection for a psychiatric disorder as secondary to hepatitis C is not warranted. Absent reliable lay or medical evidence relating these claimed disabilities to service, other than admitted drug abuse, the Board concludes that the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). III. Service Connection - Orthopedic and Vascular Claims Analysis The Veteran asserts he has a left hip and vascular disorders due to an injury in active service, or, due to his service connected left knee disability. Service treatment records (STRs) indicate the Veteran sustained a left knee twisting injury and was placed in a cylinder cast. In a February 1977 STR, the examiner noted after the Veteran had his cast removed, a friend kicked his cane and he fell striking his knee. The examiner noted only minimal tenderness. The diagnoses were soft tissue contusion and resolving medial collateral ligament (MCL) strain. In March 1977, his knee was normal on examination and he was returned to full duty. Upon separation examination in September 1977, lower extremity examination was normal. In a September 1977 separation medical history report, the Veteran denied swollen or painful joints. Post-service VA and private treatment records include a diagnosis of atherosclerotic vascular calcification within the abdominal and pelvic arterial vasculature on x-ray study in May 2009. In a June 2009 VA progress note, the Veteran complained of left hip pain which is aggravated with increased walking. The examiner noted that in his prior treatment for his low back he has no mentioned hip pain. He complained it is now his hip and he is having problems walking. A June 2009 VA x-ray showed mild left hip osteoarthritis. In a July 2009 VA orthopedic note, the Veteran reported progressive left hip pain for the past 19 to 20 years, with increasing difficulty with walking and weight bearing. A July 2009 VA CT scan report confirmed the diagnosis. The Veteran underwent a left hip replacement in October 2010. The Veteran underwent a VA examination in January 2011 for his claimed left hip disorder. The Veteran reported he developed left hip pain 15 years ago which became progressively worse over time. After a physical examination, the examiner opined that the Veteran's left hip disorder was not caused by or a result of his left knee disability as prior VA examinations found the Veteran had a normal gait. The examiner found the Veteran's osteoarthritis of the left hip is a result of the normal aging process and past occupation which included regular physical labor. The examiner noted that Uptodate.com states that osteoarthritis most commonly present in patients over 40 years of age and mechanical stresses associated with certain occupations also appear to be associated with an increased risk of hip osteoarthritis. The evidence clearly shows that the Veteran has a current diagnosis of a left hip disability. As such, the critical question is whether any current left hip disability was incurred in service or other incident of service. Based on the evidence of record, the Board concludes that it was not. In this case, there is no indication that the Veteran had a left hip disorder during active service. The first complaint of a left hip disorder was in June 2009, more than 30 years after separation from service. The evidentiary gap between the Veteran's active service and the earliest medical evidence of a left hip disorder weighs heavily against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The only nexus opinion which may relate the Veteran's current left hip pain to an injury in service is the November 2009 VA examination report. The November 2009 VA examination noted that the Veteran is having a left total hip replacement and is claiming his in-service knee injury is the reason for the surgery. He claimed he has an altered gait. Upon physical examination, the examiner noted gait as normal. The examiner found that "residuals of left knee injury occurred in the military as there was documentation of this." The examiner did not specifically indicate whether the Veteran's left hip disorder is a residual of the in-service left knee injury, but simply transcribed the Veteran's assertions. Even if the Board assumes the examiner was relating the Veteran's left hip disorder to the in-service injury, the examiner gave no rationale upon which to base the opinion. The Board assigns little probative value to this opinion. On the other hand, the Board finds the January 2011 VA examiner's opinion that the Veteran's left hip disorder is not caused by active service or service-connected disorder of significant probative value. The report was based on a complete review of the claims file, including service treatment records. Further, a complete and thorough rationale is provided for the opinions rendered. As noted, the examiner considered the Veteran's reports of hip pain in service and complaints of hip pain thereafter, but did not find the statements sufficient on which to base an opinion as to etiology. Based on all the evidence, the examiner concluded that the Veteran's current left hip disability was not caused by or a result of any incident in military service or service-connected disability. The examiner's conclusion is fully explained and consistent with the evidence of record. Consequently, the Board finds that entitlement to service connection for a current left hip disorder is not warranted. For his claim for service-connection for atherosclerotic vascular calcification, the Board finds service connection is also not warranted. In his June 2009 claim, the Veteran asserted he has advanced atherosclerotic vascular calcification due to a fall aboard the USS New Orleans. In a subsequent June 2009 statement, the Veteran claimed that his atherosclerotic vascular calcification is a direct result of the Navy not taking care of his body when he injured his back in service. In a January 2010 statement, the Veteran asserted his atherosclerotic vascular calcification was due to arthritis in the left hip. The Veteran is not currently service-connected for a back or hip disorder, and as such service connection on a secondary theory is not warranted. The Board also has considered the statements of record from the Veteran attempting to etiologically link his right hip and vascular disorders to his military service. The Board acknowledges that he can attest to factual matters of which he has first-hand knowledge, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Laypersons, however, are not generally competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Although the Veteran is competent to report his observable symptoms associated, he is not competent to opine as to the etiology of the current left hip and vascular disorder in this case, as this is the type of medical question that is beyond the capability of a lay person's observation and thus requires medical expertise. He is not observing and reporting a cause and effect relationship, but is instead considering factors and formulating a conclusion. The January 2011 VA medical examiner's opinion that the current left hip disorder is not caused by an in-service injury is entitled to great probative weight as it is based on a review of the history and a physical examination, and as a rationale was provided for the opinions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Absent reliable lay or medical evidence relating these claimed disabilities to service, the Board concludes that the claims of entitlement to service connection for left hip and atherosclerotic vascular calcification disabilities must be denied. The preponderance of the evidence is against the Veteran's claims and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for acquired psychiatric disorder, to include bipolar disorder, anxiety, and severe depression, is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for osteoarthritis, left hip, to include as secondary to service-connected left knee is denied. Entitlement to service connection for atherosclerotic vascular calcification is denied. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs