Citation Nr: 1419210 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 07-10 243A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for arthritis. 2. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder, to include major depressive disorder and anxiety. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to October 1975. The Veteran's claims come before the Board of Veterans Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO, in pertinent part, determined that new and material evidence had not been submitted to reopen claims of entitlement to service connection for arthritis or posttraumatic stress disorder (PTSD). The Veteran timely perfected an appeal. In June 2010, the Board remanded the appeal for a hearing. In February 2011, the Board expanded the Veteran's petition to reopen the claim for PTSD, to include a claim for a psychiatric disability other than PTSD, and remanded the issues for additional development. In November 2013, the Board determined that new and material evidence had not been submitted to reopen the Veteran's claim for PTSD, but reopened the claim for arthritis; the Board remanded the claim for arthritis as well as the claim for an acquired psychiatric disorder, other than PTSD, for additional development. The Agency of Original Jurisdiction (AOJ) has returned the appeal to the Board for further appellate review. As discussed further herein, in regard to the claim for arthritis, the Board finds that the AOJ substantially complied with the remand orders such that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran currently suffers from arthritis that is the result of a disease or injury incurred during active duty service. CONCLUSION OF LAW Arthritis was not incurred in or aggravated by active duty service, nor may it be presumed to related thereto. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a May 2005 letter, sent prior to the initial unfavorable July 2005 rating decision, generally advised the Veteran of the evidence and information necessary to substantiate a claim for service connection as well as his and VA's respective responsibilities in obtaining evidence and information. In April 2011, the Appeals Management Center mailed the Veteran a letter informing him of the evidence and information necessary to reopen and substantiate his claims for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). This letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Although the April 2011 letter was mailed to the Veteran after the initial adjudication, his claims were readjudicated in May 2012 and January 2014. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In further regard to the duty to notify, and in specific regard to the Veteran's November 2010 Board hearing, the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: to explain fully the issues, and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing in this case, the undersigned Acting Veterans Law Judge discussed the evidence necessary to substantiate a claim for service connection, inquired as to basis of the Veteran's contentions, and indicated that evidence supportive of those contentions would assist him in substantiating his appeal. Accordingly, the Bryant duties were met and the hearing is legally sufficient. Relevant to the duty to assist, the Veteran's service treatment records, records from the Social Security Administration (SSA), as well as VA and private treatment records have been obtained and considered. The Board notes that neither the Veteran nor his representative has identified any other outstanding pertinent records. Additionally, the Veteran was afforded a VA examination for arthritis in December 2013. The Board finds that this VA examination, which reflects that the VA examiner reviewed the claims folder (specifically including all records in the Veterans Benefits Management System (VBMS)) in addition to interviewing and examining the Veteran, is adequate to decide the issue. The ultimate opinion proffered by the VA examiner reflects consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and reflects an adequate rationale. Moreover, the VA examiner offered clear conclusions as well as a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion has been met. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted, the Board remanded this case in June 2010 for the provision of a hearing, in February 2011 for the provision of additional notice and to obtain SSA records, and in November 2013 for additional records and the provision of VA examinations. As the record reflects that the Veteran was afforded a hearing as well as an examination and that SSA and additional VA records have been associated with the claims file, the Board finds that the prior remand directives have been substantially complied with such that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. The Merits of the Claim The Veteran claims to experience arthritis as the result of a left leg injury incurred during his active duty service. Specifically, he contends that his leg has caused him pain ever since his service. The Board disagrees. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or within the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities, which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by service records, treatment records, the official history of each organization in which such Veteran served, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Here, the service treatment records associated with the Veteran's claims file do show that he injured his left ankle in March 1973 while playing baseball. X-rays at that time revealed a small chip fracture. The Veteran was subsequently treated with application of a walking cast, which he wore for six weeks. In July 1975, the Veteran complained of bilateral lower leg pain, which was attributed to how his boots were tied and the Veteran was advised to adjust his wear and return if swelling recurred. Upon his discharge from service, no bone or joint abnormality was noted. The Veteran completed a concurrent self report of medical history, on which he checked both "yes" and "no" in regard to whether he had ever experienced "trick or locked knee." A health care professional reviewing the Veteran's self report noted no bone or joint abnormalities, but reported such detail as "dizziness from eating too much pork," "asymptomatic headaches," and "has Rx for glasses." A September 1998 X-ray report that revealed no bone or joint abnormality of the left ankle; however, he contended in a November 1998 statement that he had arthritis as a result of his in-service baseball injury. In March 1999, a VA neurosurgeon noted that the Veteran complained of neck pain radiating into his left shoulder as well as pain in his low back radiating to the left leg, but indicated those observations were made in regard to the Veteran's report of a 1997 car accident and a one-year history of back pain. In May 2002, the Veteran reported that he injured the entire left side of his body in service, as a result of the baseball injury, and had been in pain ever since. However, a June 2002 VA examiner noted "no residual of arthritis or poor circulation in the legs" and further observed that X-rays showed no bone, joint, or soft tissue abnormality of the bilateral shoulders. In September 2003, the Veteran wrote that he had developed arthritis on active duty from the straps on his boots, but, in an August 2005 statement, contended that he had experienced pain and arthritis ever since service as a result of the baseball injury. He also stated that injury left him in a full leg cast for six months. During the Veteran's November 2010 Board hearing, he again contended that he had arthritis in his entire left leg as a result of his in-service baseball injury. The Veteran was afforded another VA examination in December 2013. The report reflects that the VA examiner noted the Veteran's contentions and reviewed the entire claims file. After conducting X-rays that revealed arthritis of the right knee and hip, the VA examiner noted that the original injury was to the left side of the Veteran's body, specifically the ankle, and, as such, was not consistent with his current arthritis. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that an in-service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board must weigh all the evidence and, in specific regard to any competent lay evidence, make a credibility determination as to whether it supports a finding of service incurrence or, if applicable, continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest (to include desire for monetary gain), the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). See Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the Veteran is competent to report his symptoms, but his accounts as to the specifics of his in-service injury (six months of full leg cast) are contrary to the documented medical history (six weeks in a walking cast). Further he did not report any ankle or leg disability at the time of his discharge, despite providing detail regarding other health issues (i.e. dizziness related to pork consumption and an eyeglass prescription). The Veteran has also been inconsistent in his report of his symptoms, and the duration of his symptoms, depending on whether or not he is speaking to a VA medical professional in regard to his claim for benefits. Overall, his contentions have varied such that the Board does not find him to be a credible historian. Caluza, 7 Vet. App. 498. Although a claimant's lay testimony as to continuity of symptoms can constitute sufficient evidence linking arthritis to service (Walker, 708 F.3d 1331), here the Veteran's testimony cannot suffice as it is not credible. The Board finds in the instant case that the competent medical evidence of record - to specifically include X-ray evidence showing no arthritis until more than 20 years after service, the June 2002 VA examiner's findings of no residual of injury to the bilateral legs, as well as the December 2013 VA examiner's finding that the Veteran's current arthritis was consistent only with right-sided injury - constitutes persuasive evidence against his claim. The Board further finds that the December 2013 VA examiner's medical opinion is the most probative evidence of record as the report reflects that the examiner was fully informed of the pertinent medical history and provided a fully articulated opinion supported by reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. In conclusion, there is no probative evidence that the Veteran currently experiences any arthritic condition as a result of his active duty service. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, here, as the preponderance of the evidence is unfavorable, the claim must be denied. Id. ORDER Entitlement to service connection for arthritis is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In November 2013, the Board remanded the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder for additional development, to include the provision of an examination. The Board specifically instructed the VA examiner to confirm that the entire claims file was reviewed. However, the December 2013 mental disorders examiner indicated that he only reviewed records of VA treatment and did not review the full claims file. Although the examiner opined that "there is nothing in his medical records to suggest that his depression or any other MH concerns are linked to his military service," the examiner did not specifically discuss any service treatment records. Of particular note, the Board observes an October 1975 report of medical history showing that the Veteran self-reported "depression or excessive worry" and a reviewing health care professional noted that he had been "depressed in Brig - NCD." As the November 2013 VA mental disorders examination report does not contain sufficient detail for the Board to determine whether the opinion is adequate, an addendum opinion is necessary. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Obtain all available outstanding VA treatment records. NOTE that the most recent VA treatment record within the claims file is dated December 16, 2013. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue an appropriate formal determination of unavailability and notify the Veteran of the status of such records. 2. Provide the Veteran with an opportunity to submit any private medical evidence that is not of record. Send him the necessary authorizations for the release of private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After all outstanding records have been associated with the claim file, return the Veteran's claims file to the November 2013 VA mental disorders examiner for an addendum opinion based on review of the entire claims file. If that examiner is not available, the file should be provided to another examiner with appropriate qualifications. NOTE that the Veteran's claims file is fully virtual/ electronic - if the examiner does not have access to Virtual VA and VBMS, the AOJ must make the documents therein available to the examiner via other means. A copy of this Remand also must be made available to, and reviewed by, the VA examiner. If the examiner determines that another examination of the Veteran is warranted, appropriate steps must be taken to accomplish such examination. After reviewing the entire claims file - to specifically include, but not limited to, service treatment records such as the October 1975 report of medical history - the VA examiner should offer another opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran experiences any current acquired psychiatric disorder that began during service or is otherwise causally related to any incident of service. The VA examiner must provide a fully supported rationale for any opinion offered. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2013). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs