Citation Nr: 1514011	
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  12-31 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder.

2.  Entitlement to service connection for a left ankle disorder.

3.  Entitlement to service connection for a liver disorder.

4.  Entitlement to an initial disability rating higher than 10 percent for right wrist strain, status post-operative scaphoid fracture with carpectomy.

5.  Entitlement to an initial disability rating higher than 10 percent for right knee strain.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran had active duty service from October 2000 to July 2010.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2011 and May 2012.  The 2011 rating decision granted service connection for right knee strain, right wrist strain, and right ankle strain, and denied service connection for depression.  The 2012 rating decision denied service connection for a liver disorder, and left ankle disorder.

The issues of service connection for a liver disorder; and increased ratings for the right wrist and right knee disorders are addressed in the REMAND portion of this decision and are REMANDED to the agency of original jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's psychiatric disorder, presently diagnosed as adjustment disorder with mixed anxiety and depression, did not begin during service, and is not related to any disease or injury in service.

2.  The Veteran does not have any residual impairment from remote left ankle sprains during service.






CONCLUSIONS OF LAW

1.  An acquired psychiatric disorder was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).

2.  A chronic left ankle disorder was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice requirements were accomplished in letters sent in May 2011 and March 2012.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  

All relevant facts have been properly developed for the issues resolved in this decision, and all evidence necessary for equitable resolution of the appeals has been obtained.  The Veteran's service treatment records and VA treatment records have been obtained.  In addition, the RO provided the Veteran appropriate VA examinations in September and December of 2010, and in February 2012.  The Board has reviewed the examination reports and finds that they are adequate because the examiners reviewed the claims file and discussed the Veteran's pertinent medical history; conducted appropriate examinations of the Veteran and considered the Veteran's subjective complaints; and reported all findings in detail.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims decided below, and no further assistance to develop evidence is needed. 

II. Service Connection Claim 

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition to the foregoing, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis or psychoses [sic] becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. §§ 3.307(a), 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.  38 C.F.R. §§ 3.307, 3.309.  

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")).

In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all the evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990).  

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 Veteran.  38 U.S.C.A. § 5107(b); 38 U.S.C.A. § 3.102.  

Merits

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  The Board's analysis below focuses specifically on the elements needed to substantiate the claims, and the evidence that the record shows, or fails to show, with respect to the claims.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

A. Psychiatric disorder

Service treatment records dated in October 2008 document the Veteran as complaining that he was unable to obtain sexual arousal with his wife, and as admitting to a strained relationship with his wife since his return from deployment, including many fights and unresolved issues.  Diagnosis was "erectile dysfunction likely psychogenic secondary to partner relation problem."  

In July 2010 the Veteran separated from service.  During his July 2010 separation examination he reported that he was taking Zoloft for anxiety and worrying.

On VA psychiatric examination in December 2010 the Veteran reported that he had been sexually molested during his infancy by a family member.  He also lamented that he had received a general discharge from service, and blamed his ex-wife.  He explained that while he was in-service his then wife was arrested for identify theft, and that this had led to his own arrest.  He added that he was in a convivial relationship with his current wife and stepchildren.  No psychiatric disorder was diagnosed, which prompted the denial of his service connection claim.  

Thereafter, VA treatment records dating from June 2012 show diagnoses of intermittent explosive disorder; impulse control disorder NOS; history of conduct disorder in childhood and antisocial features; anxiety disorder NOS; rule out adjustment disorder with anxiety; rule out PTSD secondary to harassment; and adjustment disorder with mixed emotions.  In view of this, the Veteran was examined for VA purposes in October 2013.  This yielded a diagnosis of adjustment disorder with mixed anxiety and depression, which the examiner stated was related to the Veteran's difficulties adjusting to civilian life after service.  The examiner added that the Veteran's difficulties with impulsivity and anger predated his entry into military service and were not exacerbated or aggravated by his military service. 

Analysis 

Preliminarily, the Board notes that a psychiatric problem was not reported or detected during the Veteran's August 2000 enlistment examination, so the Veteran is presumed to have been sound on entry into service.

As for the merits of the claim, although the Veteran reported, during his 2010 separation examination, that he was taking Zoloft, there significantly is no record of this drug in his voluminous service treatment records.  In any event, the Veteran was not diagnosed with a psychiatric disorder during service, and there is no record of psychosis in the year after service.  The criteria for a grant of service connection for an acquired psychiatric disorder on a direct basis under 38 C.F.R. § 3.303(a) or under the presumptive provisions of 38 C.F.R. §§ 3.3.07, 3.309 are therefore not met.  In fact, the earliest clinical evidence of a psychiatric disorder derives from VA medical records dated in 2012; after the Veteran's separation from service.  Although the examiner related the Veteran's current diagnosis to difficulties adjusting to civilian life, that finding necessarily means its onset occurred after service.  Accordingly, it may not be concluded the disability was incurred in service, and there has been no in-service disease or injury to which it has been related.  

To the extent that the Veteran suggests that his partner relation problem during service was symptomatic of a true clinical disorder diagnosed later in life, no medical provider has indicated this to be the case; and it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer medical diagnoses or opinions.  The Veteran's lay opinion is therefore little more than conjecture and is of no probative weight.  

The Board accordingly finds that the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

B. Left ankle

Facts and Analysis 

Service treatment records confirm that the Veteran was treated for sports' related sprains to the left ankle; once in 2003, and again in 2005.  There is no other record of any complaint, diagnosis, or treatment related to the left ankle in service treatment records.  These two mishaps during service do not reflect a chronic left ankle disorder; particularly as the Veteran went on to serve an additional five years without further reference to the ankle.  Service connection for a left ankle disorder on a direct basis under 38 C.F.R. § 3.303(a) is therefore not warranted.

Service connection for a disability diagnosed after service (38 C.F.R. § 3.303(d)) or under the presumptive provisions of 38 C.F.R. §§ 3.307(a), 3.309(a) is also not warranted as there is no probative post-service evidence of a left ankle disorder, despite examinations conducted for VA purposes in 2010, 2012 and 2013.  

As for the Veteran's lay contentions, although he complains of left ankle pain, particularly when barefoot, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom.  Sanchez- Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).  

The Board accordingly finds that the preponderance of the evidence is against the claim.  Service connection for a claimed left ankle disorder must therefore be denied and the benefit-of-the-doubt does not apply.  See 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d 1361, 1364; Gilbert, 1 Vet. App. 49, 55-56.


ORDER

Service connection for an acquired psychiatric disorder is denied.

Service connection for a left ankle disorder is denied.


REMAND

Regarding the liver disorder claim, the Veteran apparently had abnormal blood tests in service, suggestive of a liver impairment, as well as abnormal blood work when examined for VA purposes in 2010.  Although a 2012 VA examiner found no signs or symptoms of a chronic liver disease, that examiner did not fully address all of the abnormalities noted in the 2010 blood work, and apparently, blood was not drawn at the time of the 2012 examination.  Additional development as indicated below should be accomplished.  

Regarding the right wrist, when this was last examined for VA purposes in 2010, the presence of nerve/muscle impairment was suggested, but was not fully described.  A new examination should be accomplished.  

As to the right knee, the record shows the Veteran underwent surgery on that knee in January 2014, and was assigned a temporary total rating for convalescence from February to May 2014.  However, he has not had a formal post surgery examination that fully describes his current knee status.  

On remand VA treatment records dated after December 2014 should be associated with the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file, either physically or electronically, all of the Veteran's VA medical records dated after December 2014.  Any pertinent private treatment records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran.  If no records are found, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e).

2.  Accord the Veteran a new VA liver disease examination.  The claims file should be made available and reviewed by the examiner.  All indicated tests should be accomplished, and all findings reported in detail.  The examiner is then requested to opine whether it is at least as likely as not a current liver disorder, if found, is related to any incident of active duty service.  

In formulating the requested opinion the examiner should note that the Veteran took INH prophylaxis for about six months during service (from 2000 to 2001); that laboratory work during service in August 2004 found high SGPT; that the Veteran was treated for severe right flank pain during service in September 2007; and that laboratory testing a few months after the Veteran's July 2010 separation from active duty service found high MCHC, SGPT, and SGOT (see September 2010 VA examination report).

3.  Accord the Veteran a new VA examination of his right wrist and right knee.  The claims file should be made available and reviewed by the examiner.  All indicated tests should be accomplished, and all findings reported in detail.  The examiner is also requested to address the following:

A. Right Wrist:
 
o state whether there is any muscle or nerve damage associated with the Veteran's service connected right wrist strain, status post-operative scaphoid fracture with carpectomy; and if so, the impairment arising from this should be described, including any limitation of motion of the fingers;

B. Right Knee: 
o state whether there is any objective evidence of pain on range of motion testing; and, if there is pain on motion, identify the specific excursion(s) of motion accompanied by pain; the point in range of motion testing when pain begins and ends; and the point at which pain begins and ends in range of motion testing after repetitive motion;

o state whether there is any incoordination, weakened movement and excess fatigability on use; and, if feasible, assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss;

o state whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups) of the right knee; and, to the extent possible, provide an assessment of the functional impairment after repeated use or during flare-ups in terms of the degree of additional range of motion loss; if feasible.  

o describe the characteristics of the right knee scar(s), and discuss the symptoms associated with it/them;

o state whether there is right knee instability; and, if so, whether the instability is best characterized as slight, moderate, or severe;

C. assess the impact of the Veteran's service-connected right wrist disability and his service-connected right knee disability on his activities of daily living, including his occupational functioning.

4.  After the above actions have been completed, re-adjudicate these appeals; and if any additional issues are inferred by the record, (e.g., entitlement to a total disability rating based on individual unemployability), that should be properly developed and adjudicated as well.  

5.  If any benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case on those issues and then return the case to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 2014).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs