Citation Nr: 1503887 Decision Date: 01/28/15 Archive Date: 02/09/15 DOCKET NO. 09-28 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for residuals of decompression sickness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to June 2003. He appealed to the Board of Veterans' Appeals (Board/BVA) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied his claims of entitlement to service connection for hypertension, residuals of decompression sickness (DCS), a cervical spine disability and a lumbar spine disability. During the pendency of this appeal, however, a June 2014 decision of a local Decision Review Officer (DRO) granted the claims for service connection for the cervical and lumbar spine disabilities. The DRO assigned an initial 20 percent rating for each of these disabilities retroactively effective from April 4, 2006. In addition, the DRO assigned a higher 40 percent rating for the lumbar spine disability as of May 6, 2008. There is no indication the Veteran since has timely disagreed with these initial ratings and/or effective dates assigned for these now service-connected disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Therefore, that is considered a full grant of the benefits sought on appeal, meaning those claims are no longer at issue. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). In November 2014, in support of his remaining claims for hypertension and DCS, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board - in other words at a Travel Board hearing). A copy of the transcript has been associated with the file, so is of record. While the Board is going ahead and deciding the Veteran's claim for residuals of DCS, the Board instead is remanding his claim for hypertension to the Agency of Original Jurisdiction (AOJ) for further development. FINDING OF FACT The most probative (meaning the most competent and credible) evidence shows the Veteran does not currently have any residuals of DCS. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for residuals of DCS. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102 and 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). Here, prior to initially adjudicating this claim, so in the preferred sequence, a February 2007 letter was sent to the Veteran in accordance with the duty-to-notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The letter duly notified him of the evidence that was needed to substantiate this claim, of the information and evidence that VA would obtain, and of the information and evidence he was expected to provide, and informed him that VA would assist him in obtaining supporting evidence, but that it was his ultimate responsibility to provide VA any evidence pertaining to his claim. He was also notified of the criteria for establishing a "downstream" disability rating and an effective date in the eventuality service connection is ultimately granted. See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Therefore, he has received all required notice concerning this claim. VA's duty to assist under the VCAA includes helping him obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on a claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board also finds that VA has made reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim. 38 U.S.C.A. § 5103A (West 2014). To this end, his STRs have been obtained and associated with his claims file for consideration, as well as all post-service pertinent or identified records that could be obtained. He also had VA compensation examinations in October 2013 and August 2014 concerning this claim, including for comment concerning the nature and etiology of his claimed residuals (if any) of DCS and their posited relationship with his military service. The VA examinations are more than adequate as they were predicated on a review of the claims file, contain a description of the history of this alleged disability, document and consider the relevant medical facts and principles, and provide opinions regarding whether he has this alleged disability and, if confirmed he does, whether it is related or attributable to his military service. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for this claim has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As for the November 2014 hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that a presiding VLJ of the Board or hearing officer has two duties to comply with a pertinent VA regulation, 38 C.F.R. § 3.103(c)(2). The first duty is to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ or hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. There was compliance with these two duties, as the presiding VLJ - the undersigned - fully explained the issue on appeal and attempted to identify any evidence that might be missing from the record by asking the Veteran about his symptoms and treatment history. II. General Statutes, Regulations and Precedent Cases Governing Claims of Entitlement to Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2014). In order to establish entitlement to direct service connection for a claimed disorder, the following must be shown: (1) that the Veteran has the claimed disability or that he at least has at some point since the filing of his claim for the disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the presently-claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303(b) (2014). But this alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Federal Circuit Court nonetheless has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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 profession." Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). But in determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet. App. At 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Consider also that a Veteran is not competent to provide probative opinion regarding more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (discussing this in the context of a claim for rheumatic heart disease). Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case basis and dependent on the type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[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.") In order to grant a Veteran's 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 Veteran 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, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Whether Service Connection is Warranted for Residuals of DCS The Veteran served as a Navy diver for over 20 years. His STRs indicate that, in October 1991, he had paresthesia (tingling) after a completed dive. In August 2001, a post-dive examination revealed his orientation was within normal limits, but that he had some cerebellar symptoms, so he was kept on observation. At his 24-hour post-dive examination, he reported that he felt well and had further no complaints. In addition, his 48-hour post dive examination was grossly normal, and he again confirmed that he felt well and had no complaints. His military service ended in June 2003. The Veteran had a VA respiratory examination about 10 years later, in October 2013, to determine if he had any residuals of DCS. He reported that his claimed condition had begun in 1992 and that he had had two episodes in 1992 and 2001. He stated that he had concerns regarding his cognitive ability and explained that going back to school was difficult for him because he had problems with focusing. He complained of issues with his memory and fine detail work. Additionally, he reported still working as an engineer. On objective physical examination of the Veteran, the examiner observed that the Veteran had a normal chest X-ray and no symptoms or diagnosis of any respiratory disorder. Thus, he concluded there was no diagnosis because there was no pathology to render a diagnosis. After the Veteran's insistence that he had cognitive impairment from DCS, the RO scheduled him for a VA mental health evaluation. The VA mental health examiner submitted an August 2014 Disability Benefits Questionnaire (DBQ). In the responses to the questions posed in this informational document, the examiner noted the Veteran reported being a saturation diver for 27 years. Since his service, he had gone to college for four years and had earned an Associate's degree. Thereafter, he had worked in Japan as a civilian at the submarine trouble desk for the Navy for three years and then had worked at Puget Sound Naval Shipyard as a technical writer. This VA mental health examiner pointed out the Veteran had never received mental health treatment, although reporting that he had suffered from DCS in 2002. The Veteran indicated he worried about his short-term memory from that time going forward. He explained that, while in college, he felt his attention would wander in math classes and experienced word finding problems. He further stated that, as an engineering writer, he got distracted and lost focus occasionally. He took notes to keep more on task and stay on direction and said he had difficulty even with that. He denied having a depressive mood, anxiety or panic attacks. He also denied any concussions or traumatic brain injury (TBI). On objective mental status evaluation, the examiner observed the Veteran's grooming and hygiene were good. His mood appeared euthymic. His speech was unremarkable and his thought processes were logical and coherent. He made good eye contact throughout the examination and the examiner noted the Veteran was a reliable historian. He was administered the Montreal Cognitive Assessment (MoCA) test to screen for any memory or cognitive effects. He scored 29 out of 30, which was noted to be within normal limits indicating he did not have any memory or cognitive deficits. The examiner therefore concluded that, insofar as the Veteran's claimed mental health condition/cognitive disorder, there was no diagnosis because there was no pathology to render a diagnosis. The examiner additionally pointed out that there was a family practice counseling note from October 2003 indicating the Veteran had attended college with the goal of going into civil engineering, and there were no barriers to learning noted. Instead, the visit was considered to deal with a parent/child relationship problem. The examiner concluded that the results of the mental health assessment and cognitive screening showed no impairments of memory or cognitive complaints. During his subsequent November 2014 hearing before the Board, the Veteran argued that he should be afforded another VA compensation examination to determine whether his claimed cognitive loss due to DCS is a result of his 27 years of diving while in the Navy. His representative cited to VA Training Letter (TL) 07-04, which provides some information for VA regarding the medical consequences of diving. The letter describes other potential long-term effects of diving, which include cognitive effects. The letter notes that there is conflicting medical information about whether long-term neurologic effects can result from diving, but that some studies have indicated subtle abnormalities with special testing. The prominent symptoms have been concentration, long- and short-term memory, tremor, impaired spatial memory, and mood lability. "The risk of neurological injuries is believed to be related to DCS, anoxia, and gas toxicities, but no consensus exists as to whether or not diving per se causes brain damage." As already discussed, however, the Veteran has had at least two VA compensation examinations, even one at his insistence, and both examiners ultimately determined they did not have any clinical basis to make a diagnosis of any cognitive defect. Moreover, the Veteran has not submitted any probative evidence tending to suggest he has a current diagnosis indicating he has residuals of DCS. This type of disorder is not a simple condition, instead, medically complex, so as a layman he does not have the competence to say he has it or even any consequent residuals. See, e.g., Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). In this particular instance, VA did indeed obtain a medical opinion, in fact two, and both are unfavorable to this claim, not instead supportive of it. Unfortunately, at no time since the filing of this claim for residuals of DCS has there been confirmation the Veteran has any current disability owing to this disease. Resultantly, service connection for residuals of DCS is not warranted. See Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000) (generally observing that, in the absence of proof of a current disability, there can be no valid claim because there is no present-day disability to relate or attribute to service). 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) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). 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). Contrarily, the competent evidence of record here shows the Veteran's symptoms of DCS for all intents and purposes resolved in 2002, as evidenced by his initial reports that he felt well. See STRs dated in August 2002. He testified during his November 2014 hearing before the Board that his initial acceptance that his symptoms had resolved was misguided (since they never in fact actually did with the benefit of hindsight). But the fact remains that the VA compensation examiners, indeed both of them, found no pathology suggestive of any residuals attributable to the DCS experienced in service. This determination was based, in part, on the results of the Veteran's MoCA testing for memory or cognitive impairment; the results of this testing were well within normal limits, and this in turn led the VA examiner to conclude that the Veteran had no cognitive defects or any other mental health diagnoses. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain even to a recent diagnosis predating the filing of the claim). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for residuals of DCS. Accordingly, the benefit-of-the-doubt rule does not apply, and this claim resultantly must be denied. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER The claim of entitlement to service connection for residuals of DCS is denied. REMAND As concerning the remaining claim for hypertension, although the Board sincerely regrets the additional delay that inevitably will result from remanding, rather than immediately deciding, this claim, this further development is essential to its fair disposition. The Veteran testified during his November 2014 hearing that he had elevated blood pressure readings in service, although hypertension was not actually diagnosed until after his service by his private treating physician. A review of the post-service medical treatment records confirms the Veteran has the required diagnosis of hypertension and is on medication to try and control it. See Madigan Health Record dated in April 2006. His STRs substantiate his November 2014 hearing testimony that he had elevated blood pressure readings while in service. He added in his hearing testimony that, although hypertension was not actually diagnosed during his service, he was told he had what amounted to "white coat" hypertension or even possible fever. According to his STRs, in October 1991 he had a blood pressure reading of 134/100, and again in November 1991 his blood pressure readings were 134/104, 126/100 and 132/100. Some of his other subsequent significant blood pressure readings were: 126/90 in May 1993; 122/90 in November 1994; 134/88 in April 2002 and 128/90 in September 2002. Since there is the requisite showing he has a current diagnosis of hypertension and the evidence also indicates he had several elevated blood pressure readings during his service, a VA compensation examination and medical nexus opinion are needed to assist in determining whether his current hypertension started during his service to warrant concluding it was incurred in service, or within a year of his discharge to warrant presuming it was incurred during his service, or is otherwise related or attributable to his service. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule the Veteran for a VA compensation examination for a medical nexus opinion concerning the etiology or likely time of inception of his hypertension. In particular, the designated examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's hypertension is related to his military service or dates back to his service, including to the several elevated blood pressure readings that were noted during his service - especially 134/100 in October 1991; 134/104, 126/100 and 132/100 in November 1991; 126/90 in May 1993; 122/90 in November 1994; 134/88 in April 2002; and 128/90 in September 2002. Also in commenting on the history of the hypertension, the examiner should additionally indicate whether it initially manifested to a compensable degree within the initial post-service year - so meaning by June 2004, to alternatively warrant presuming it was incurred in service. When providing his/her responses, it is essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable to the claim, if necessary citing to specific evidence in the file supporting conclusions. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran a supplemental statement of the case (SSOC) and give him time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs