Citation Nr: 1629603	
Decision Date: 07/25/16    Archive Date: 08/04/16

DOCKET NO.  09-01 089	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for hypertension.

3. Entitlement to a rating in excess of 20 percent prior to April 22, 2013 and in excess of 40 percent from April 22, 2013 forward for lumbosacral strain (back).

4. Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1973 to April 1976.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The Veteran presented testimony on the back and TDIU issues in a July 2012 Board hearing; a hearing transcript is included in the file.  The Board previously considered the back and TDIU appeals and remanded in October 2012.

The issues of increased back ratings and TDIU 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 evidence does not show current PTSD or an in-service incurrence or event related to current depressive disorder, schizoaffective disorder, dysthymic disorder, or schizophrenia diagnoses.

2. The weight of the evidence is against finding hypertension in service or within a year of separation.


CONCLUSIONS OF LAW

1. The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015).

2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).

In November 2010, the RO sent the Veteran a letter, providing notice that satisfied the requirements of the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required.  

Next, VA has a duty to assist the appellant in the development of claims.  This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All identified, available medical records have been obtained and considered, including Social Security Administration (SSA) records.  The claims file includes some of the Veteran's service treatment records, and multiple requests by VA did not produce any additional records.  See January 2012 memorandum.  In November 2011, the RO requested that the Veteran provide any service records in his possession.  Additional service records appear to be unavailable.  VA is not required to provide examinations for the psychiatric or hypertension claim because the evidence does not show an in-service incurrence or suggest a connection to service.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board has carefully reviewed the record and determines there is no additional development needed for the claims decided herein.  

As VA has satisfied its duties to notify and assist the appellant, no further notice or assistance is required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

II. Service connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose or determine the cause of complex mental health or cardiovascular disabilities as this requires specialized medical knowledge and training.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  The Board finds his statements generally credible as they have been consistent and detailed.

Following a review of the evidence, the Board has determined that the criteria for service connection for a psychiatric disability have not been met. See 38 C.F.R. § 3.303.

First, the evidence shows treatment for psychiatric disabilities.  VA treatment records show diagnoses of depressive disorder, schizoaffective disorder, dysthymic disorder, and schizophrenia.  See August 2009, April 2011, August 2013 records.  While the Veteran claimed PTSD, the evidence does not show a diagnosis of PTSD.  Instead, a January 2010 PTSD screen was negative and an April 2011 evaluation ruled out PTSD as a diagnosis.  The Veteran has not presented any evidence to support his contention of PTSD.

Next, the evidence does not show an in-service incurrence or stressor that could be related to the current diagnoses.  Service treatment records are silent for any complaint of or treatment for mental health problems.  The March 1976 separation examiner reflects a normal psychiatric evaluation.  Service personnel records show that the Veteran was discharged under "other than honorable" conditions after he was accused of taking unauthorized absence from duty.  His discharge was upgraded to "under honorable conditions" based on a finding that the prior discharge was unduly harsh.  However, neither personnel records nor statements from the Veteran discuss the reason for the unauthorized absence or any other behavioral abnormalities.  Instead, personnel records show that the Veteran requested a discharge because Naval regulations conflicted with his religious beliefs.  In November 2010, the RO sent the Veteran a form requesting information about an in-service stressor event, but the Veteran did not respond or otherwise supply such evidence.  Based on the documents of record, there is no evidence of an in-service incurrence of mental health problems or an event that could cause a psychiatric disorder.  Service connection cannot be established without an in-service incurrence or event.  See 38 C.F.R. § 3.303.

Similarly, the Board finds that the criteria for service connection for hypertension cannot be established based on the evidence.  See 38 C.F.R. § 3.303.

The evidence shows hypertension currently, but not at the time of service or in the intervening years.  VA treatment records show diagnosis of and treatment for hypertension from 2008 to 2014.  Service treatment records are silent for elevated blood pressure readings or hypertension diagnosis.  The March 1976 separation examiner recorded the Veteran's blood pressure as 110/74.  In July 2002, a treating provider recorded his blood pressure as 135/79 and did not diagnose hypertension.  A June 2014 treatment record notes that the Veteran was diagnosed with hypertension more than seven years prior, or around 2007.  This report is consistent with the 2002 records that did not show a hypertension diagnosis.  The Veteran has not reported on-going hypertension treatment or an onset prior to 2007.  Based on the evidence, the Veteran developed hypertension decades after his 1976 separation from service.  Service connection cannot be granted without an in-service incurrence of hypertension or diagnosis with a compensable level of disability within a year of service.  See 38 C.F.R. §§ 3.303, 3.307, 3.309. 


ORDER

Service connection for an acquired psychiatric disorder is denied.

Service connection for hypertension is denied.


REMAND

In compliance with the Board's remand directives, the AOJ provided the Veteran a new examination for his back in April 2013.  However, in November 2014, the Veteran wrote that his back was worse than at the last VA examination.  A new examination is therefore needed to accurately determine the current level of impairment.  See Bolton v. Brown, 8 Vet. App. 185, 191 (1995).  Additionally, the April 2013 examiner found severe paresthesias/dysesthesias in the left lower extremity but indicated that the lower extremities were not affected by radiculopathy.  Clarification is needed.  The TDIU claim is intertwined with the increased rating claim and is also remanded.

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. Schedule the Veteran for an examination for his back.  The examiner should complete all appropriate testing and document the Veteran's results and his description of his signs and symptoms.  The examiner should also document any neurologic abnormalities, including radiculopathy, and provide an explanation as to why abnormalities are or are not associated with the back disability.  

If any requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

3. Issue a supplemental statement of the case with consideration to the new evidence, and return the case to the Board, if otherwise in order. 

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs