Citation Nr: 1602228 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 12-31 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for cardiomyopathy with chronic congestive heart failure (CHF). 2. Entitlement to service connection for an acquired psychiatric condition, to include major depression, panic disorder, and anxiety. 3. Entitlement to service connection for hernias. 4. Entitlement to service connection for neck pain. 5. Entitlement to service connection for bone spurs. 6. Entitlement to service connection for joint pain. REPRESENTATION Appellant represented by: Neil B. Riley, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1980 to May 1981. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran was provided a September 2015 Board hearing before the undersigned Acting Veterans Law Judge. A November 2012 correspondence from the Veteran's representative alleged that the RO has been using the incorrect social security number for the Veteran and provided the correct number. The RO responded in April 2013 that the social security number used throughout the Veteran's claim period is the number provided by the Veteran himself and is also the number used in all of his service records. The RO requested that the Veteran provide VA with a certified document showing why the social security number changed, as well as a certified DD Form 214 showing the new social security number. A July 2014 correspondence from the Veteran's representative stated that the Veteran used his father's social security number while in the service. Neither the Veteran nor his representative has responded to the RO's subsequent requests for clarification and official documentation. As such, the Board will continue to use the social security number provided by the Veteran until such time as he submits official documentation that it is incorrect. The issues of service connection for CHF, a psychiatric condition, and hernias are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's neck pain is not related to an in-service injury, disease, or event. 2. The Veteran's bone spurs are not related to an in-service injury, disease, or event. 3. The Veteran's joint pain is not related to an in-service injury, disease, or event. CONCLUSIONS OF LAW 1. The criteria for service connection for neck pain have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for service connection for bone spurs have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 3. The criteria for service connection for joint pain have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The VCAA duty to notify initially was satisfied by way of pre-adjudicatory letters the RO sent to the Veteran in February and October 2010. These letters informed of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. Thus, the appellant has received all required notice concerning the claim. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran's STRs, VA and private medical treatment evidence, and the Veteran's statements. The Veteran was not provided with an examination to assess his claimed neck, bone spur, and joints conditions. VA medical examinations must be provided with there is competent evidence of a current disability, evidence establishing an in-service injury or event, and any indication that the disability may be related to the in-service event. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed, the evidence does not establish any in-service injury or event, or any nexus to active service. Accordingly, a VA examination was not required. In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the September 2015 hearing, the undersigned fully explained the issues on appeal, noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the hearing constitutes harmless error. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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 active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Neck Pain, Bone Spurs, and Joint Pain The Veteran contends that he has current neck, bone spur, and joint disorders that are related to service. Although he asserts that service connection is warranted for the disorders, he has made no specific contentions as to in-service injuries or events that might have caused the disorders. Service treatment records show no complaints, treatment, or diagnoses of any neck, bone spur, or joint disorders. Post-service treatment records show no complaints, treatment, or diagnoses of any bone spur, or joint disorders. A January 2009 private mental health treatment note shows that the Veteran complained of neck pain. There was no underlying diagnosis. At the September 2015 Board hearing, he testified that he tended to favor his right side during physical training in service, and he believes this led to his current neck and joint pain. Regarding the bone spurs, he stated, "I can only assume that was the only place in my whole life that I ever marched or did the kind of things that I did physically. Um, I can only assume that that had to play a part in it." The Veteran is competent to report symptoms of any neck, bone spur, and joint conditions that he may have experienced at any time. See Layno, 6 Vet. App. 465, 470. As a layperson, however, he is not competent to medically relate his current symptoms to service, approximately 30 years prior to filing his claim. Jandreau, 492 F.3d 1372, 1377. The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter that requires knowledge of the musculoskeletal system, types of diseases affecting the system and generally requires interpretation of diagnostic testing. Therefore his opinion as to the etiology of his conditions is not competent evidence. Id. (explaining in footnote 4 that a Veteran may be 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); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). As noted, while he relates his claimed disorders to service, he has not asserted that there was any injury to the neck, feet, or joints, or even complaints of neck, feet, or joint pain during service. Further, he has not claimed that the disorders have been present since service. The first mention of neck pain in the record is in January 2009, when he reported pain without any underlying diagnosis. The neck pain was not related to service at that time. There is no medical treatment evidence regarding his claimed bone spurs or joint pain. For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for neck, bone spur, and joint conditions, and the claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for neck pain is denied. Service connection for bone spurs is denied. Service connection for joint pain is denied. REMAND The Veteran asserts that his psychiatric condition, heart condition, and hernias are related to service. An August 2003 hospitalization note shows that he was admitted due to chest pain and acute coronary syndrome. X-ray findings revealed no acute pathology. Another hospital treatment note of April 2004 shows a diagnosis of congestive heart failure. An October 2015 private psychiatric examination by Dr. T.M.S. states that a heart condition was diagnosed in the 1980s, but does not cite to any medical documentation to support this statement. Dr. T.M.S. also related the Veteran's cardiovascular problems to his anxiety, stating that, "in essence, one aggravates the other." As the Board is remanding the claim for a psychiatric disorder for additional development as discussed below, and the heart condition has been related to the psychiatric disorder, the claim for a heart condition must also be remanded. The earliest medical treatment record of the Veteran seeking treatment for psychiatric symptoms is in August 2007. The October 2015 examination by Dr. T.M.S. provided a diagnosis of panic disorder, anxiety disorder, and depressive disorder, and opined that "the depression/anxiety is thought to have been aggravated by his military experience and intensified by his medical issues." Although Dr. T.M.S. notes that the Veteran felt pressured by his commanding officers to stay with his wife, he does not explain how this led to the Veteran's current diagnosis, nor does he provide an opinion as to the Veteran's mental state in the nearly 30 years between service separation and the first recorded treatment for psychiatric symptoms. As Dr. T.M.S.'s evaluation does not contain an adequate rationale for the opinion, a new examination must be provided. Regarding the hernia condition, his February 1980 report of medical history, conducted upon entrance into active duty service, notes a splenectomy secondary to a motor vehicle accident prior to service. A September 2002 private treatment record notes that the Veteran has multiple hernias status post traumatic abdominal exploration. It is unclear if the Veteran's post-service hernias are related to the pre-service splenectomy. Thus, a VA examination with opinion is necessary to clarify whether the hernia condition preexisted service and, if so, whether any event in service aggravated the condition. Additionally, the record reflects that the Veteran is in receipt of social security benefits related to his heart and psychiatric conditions. The RO made previous attempts to obtain such records but was unsuccessful because the social security number provided by the Veteran was incorrect, as discussed in the Introduction. On remand, the RO should attempt to obtain the records using the new social security number provided by the Veteran's representative. Accordingly, the case is REMANDED for the following action: 1. Contact the Social Security Administration and attempt to obtain records relating to Social Security Disability benefits provided to the Veteran. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). In attempting to obtain such records, the RO should use the new social security number provided by the Veteran's representative in the November 2012 correspondence. Additionally, the RO should seek clarification from the Social Security Administration as to the validity of the two social security numbers provided by the Veteran. 2. Arrange for the Veteran to undergo a VA heart examination. The examiner is requested to: a.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that the current heart condition had its onset in service or is otherwise related to service. b.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that the current heart condition was caused or aggravated by the Veteran's psychiatric condition(s). The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disorders. The examiner is requested to: a.) Indicate all psychiatric disabilities currently shown, and; b.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric condition had its onset in service or is otherwise related to service. c.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed psychiatric condition was caused or aggravated by the Veteran's heart condition. The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 4. Arrange for the Veteran to undergo a VA hernia examination. The examiner is requested to provide the following information: a.) Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that the hernia condition is related to service. b.) Provide an opinion as to whether Veteran's hernia condition is related to his pre-service splenectomy, or otherwise pre-existed service. c.) If it is clear and unmistakable that the hernia condition pre-existed service, provide an opinion as to whether it is clear and unmistakable that the pre-existing injury was not aggravated (permanently increased in severity beyond the natural progress of the disability) during the Veteran's service. The claims folder should be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 5. Thereafter, readjudicate the claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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). ______________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs