Citation Nr: 1752479 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-25 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, dementia, and cognitive disorder. 2. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure. 3. Entitlement to service connection for a disability characterized by generalized body pain to include gout. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from August 1970 to February 1972. These matters come on appeal before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which reopened and denied the previously denied claim for service connection for PTSD and denied the claims for service connection for prostate cancer, a disability characterized by chronic pain throughout the body, and a TDIU. The Board subsequently reopened the Veteran's PTSD claim in an August 2015 decision, and remanded the rest of the claims on appeal for additional claim development; these claims have now been returned to the Board for further adjudication. In March 2015, the appellant and his spouse testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, dementia, and cognitive disorder; prostate cancer; and a TDIU, addressed in the REMAND portion of the decision below, is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT With regard to gout there is no competent, credible and probative evidence of in-service incurrence, medical nexus, or manifestation of gout within one year of separation of active duty service, and there is no such evidence of any other diagnosed disability resulting in generalized body pain. CONCLUSION OF LAW The criteria for entitlement to service connection for a condition characterized by generalized body pain to include gout have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With regard to the duty to notify, the Board notes that prior to initial adjudication, a March 2012 letter satisfied VA's duty to notify the Veteran of the elements of his claims on appeal. Therefore, VA has met all statutory and regulatory notice provisions set forth in the VCAA. As for VA's duty to assist, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott, 789 F.3d 1375, to a duty to assist argument). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396 (2009). II. Entitlement to Service Connection The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Additionally, when the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C.A. §5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Service connection may be granted for a disability resulting from disease or injury that is incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, the three following criteria must be met: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For the first criterion of a service connection claim, a disability is considered current so long as it exists at the time the claim is filed or during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, VA has identified certain chronic diseases for which medical nexus may be presumed if certain criteria are met; arthritis is such a chronic disease. 38 C.F.R. §§ 3.303(a), (b), 3.309(a). Accordingly, for the purposes of presumptive nexus, the third criterion requiring a nexus between the in-service, event, disease or injury and the claimed disability may be satisfied in one of two ways. First, the nexus element may be satisfied by evidence that the chronic disease at issue here manifested itself to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Or, alternatively, the Veteran may show entitlement to service connection by demonstrating a continuity of symptomology after discharge. 38 C.F.R. § 3.303(b); see generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Here, the Board notes that the Veteran filed a claim for service connection for chronic pain throughout the body. The only diagnosed condition involving multiple parts of the body for which the Veteran has been diagnosed is gout dating back to December 1996, as documented by the Veteran's medical records associated in the claims file. However, there are also VA treatment records documenting atypical chest pain. October 2014 VA treatment records document a thoracic surgery consult following a report of chest pain, and indicates that the Veteran has mild aortic regurgitation and dilated aortic root. It was recommended at that time that he be subject to yearly evaluation of his aortic root and valve function in lieu of surgical intervention. A September 2014 treatment note documented suspected gastroesophageal reflux disease (GERD) because the Veteran reported lying down after eating. A previous August 1996 VA examination documents a diagnosis of biliary cirrhosis around 1989, and that the Veteran reported some right lower quadrant tenderness generally. As noted in the Board's previous decision, the Veteran has a history of several other chronic health conditions including alcohol abuse disorder, a seizure disorder, biliary cirrhosis, coronary insufficiency, polyneuropathy, hypertension, and multiple psychiatric diagnoses. At his March 2015 Board hearing, the Veteran asserted that he was unable to "do anything and gives up," and that his pain increased with weather changes. The Veteran complained of pain in his muscles, including his legs. The Veteran's spouse reported that the Vetera had been diagnosed with arthritis and a leaky heart valve that could account for his fatigue and "other things." The Veteran provided nonspecific testimony with regard to pain since service, stating that it had "kind of began in service" and that he took Tylenol for aching after service. He reported muscle aching in his legs and ankles specifically. The Veteran's service treatment records detail the following. In February 1971 the Veteran reported stomach trouble following meals. In May 1971, the Veteran complained of pains over his whole body. In June 1971 the Veteran complained of painful urination and not sleeping well, the impression was of nonspecific urethritis. Although subsequent treatment record document reports of pain in thighs, the right flank, and right chest, it is noted only that the Veteran was taking medication for nonspecific urethritis, and that his chest films were normal; the Veteran's diagnosis of nonspecific urethritis was reconfirmed in July 1971. In August 1971 the Veteran hit his right knee against a rock and there was a laceration. In October 1971 the Veteran complained of a sore neck and was diagnosed with muscle strain. The Veteran's January 1972 separation examination was normal. The Veteran was provided a VA examination in May 2016. At this examination the Veteran reported a diagnosis of gout in the early 1990s. The VA examiner noted that the Veteran has a history of gout and atypical chest, and that the Veteran was taking allopurinol to manage gout attacks, which occurred in his ankles, feet, and right wrist. He noted that the Veteran had had cardiac workups including normal heart catheterization. The Veteran complained of chronic pain in his chest and abdomen as well as cramps in his thighs. He stated that the abdominal pain was constant and worse with activity and that it was accompanied by associated constipation. The examiner also reviewed and discussed the Veteran's relevant service treatment records, summarized above. The May 2016 VA examiner provided a negative etiology opinion. The examiner specifically stated that it was less likely than not that the Veteran's gout was incurred in or related to the Veteran's active duty service. In this regard the examiner noted that the Veteran was treated for various aches and pain in service, but because there was no evidence of a chronic condition, each individual ache and pain documented in the Veteran's service treatment records likely represented an acute, transient problem. In this regard, the examiner also noted that the Veteran was not diagnosed with gout until many years after service, the 1990s. As for the Veteran's current abdominal pain the examiner noted that this abdominal pain was likely associated with the Veteran's history of cirrhosis, and that the Veteran was only shown to have treatment for chest pain on one occasion during service, with no indication of a chronic or recurrent issue. Thus, the examiner found that there was insufficient evidence in the Veteran's service treatment records linking his chest pain in service to his current chest pains. On the basis of the foregoing, the Board finds that the evidence as summarized above is insufficient to meet the elements of service connection. In this regard, the only current diagnosis the Veteran has is gout, and this diagnosis was not rendered until the 1990s, decades after the Veteran separated from active duty service. As for continuity of symptoms, the Veteran has not contended and the evidence does not show that he had symptoms of gout prior to his diagnosis in the 1990s. At his March 2015 Board hearing, the Veteran provided general testimony that he experienced "chronic" pain that "kind of" started during active duty service and that he also experienced pain after service, for which he took Tylenol, and agreed that pain had bothered him since his time in service, adding that currently he felt tired and that he could not do anything, and that he mostly felt pain in his leg muscles. The Board finds that this testimony is too general to establish continuity of symptoms for the purposes of gout given the Veteran's long history of chronic health disorders as summarized above, and because the Veteran did not state that his symptoms during active duty service and thereafter occurred continuously; rather, he testified only that he had pain in his body during active duty service and that he also had pain in his body after active duty service and that he had been bothered by pain since service. Moreover, the Veteran did not explain whether the leg pain he experienced in service was the same type of pain he is currently experiencing, and he was ambivalent and contradictory about whether his current pain started during service, stating that it "kind of" started in service, and then later agreeing that pain had caused bothered him since service. Thus although the Veteran is competent to report that he experienced pain, the testimony he provided is too vague, ambivalent, and contradictory to be considered a credible statement in support of continuity of symptoms between the Veteran's active duty service and his diagnosis of gout in the 1990s. Additionally, there is no other significant evidence of a diagnosed disease other than gout causing generalized pain throughout the body. The Board notes, as the May 2016 VA examiner noted, that there is no evidence of recurring or ongoing chronic generalized pain issues during active duty service, and the Veteran's lay statements, as discussed above, are ambivalent in this regard. With regard to the Veteran's knee pain in service, the Board reiterates that this was reported in relation to falling on a rock and was not subsequently reported or treated, and the Veteran's in-service abdominal pain was specifically described as following meals, and likewise was not reported or treated on an ongoing basis. The Veteran's right side pain was similarly only reported on one occasion without recurrence, and it is unclear what relationship, if any, it had to the Veteran's ongoing nonspecific urethritis infection. The Veteran's service treatment records are also silent for ongoing neck pain issues, and the Veteran primarily reported current ongoing pain in his legs and ankles, areas of the body that have been affected by the Veteran's gout in the past, as reported by him to the VA examiner. As for the Veteran's atypical chest pain, as noted by the May 2016 VA examiner, chest pain was only reported on one occasion during service, and VA treatment records do not document reported complaints of chest pain until July 2006, in which the Veteran reported that he had intermittent mid-chest pain with associated dyspnea for the preceding year. Additionally, the Veteran does not have a formal diagnosis for his chest pain, and VA treatment records do not relate it to pain in other parts of his body, or as a symptom of more widespread generalized pain disorder. As for abdominal pain, the May 2016 VA examiner specifically attributed this to the Veteran's history of biliary cirrhosis. As such, the Board finds that there is insufficient evidence of in-service incurrence, medical nexus, or onset within one year of separation of service to support an award of service connection or continuity of symptoms for gout, and there is insufficient evidence of any other condition resulting in generalized pain. In so finding, the Board has acknowledged that the Veteran has well-documented atypical chest pain, however for VA purposes, a disability is "the impairment of earning capacity" resulting from "a disease, injury, or defect." Cf. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Pain alone, without an underlying diagnosed medical condition, disease, or injury, does not constitute a disability on which claim of service connection may be based. Cf. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (vacated in part, appeal dismissed in part sub nom. by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (finding that the lower court erred when it made an evidentiary finding as to evidence of "exceptional and unusual circumstances")). Accordingly, an award of service connection for a disability resulting in generalized body pain to include gout is not warranted here. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). ORDER Entitlement to service connection for a disability characterized by chronic pain throughout the body, to include gout is denied. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. VA will presume that a veteran who served in Korea between April 1, 1968 and August 31, 1971 was exposed to herbicide agents if they: (1) served in a unit that operated near the Korean Demilitarized Zone ("DMZ") (as determined by the Department of Defense (DOD)); and (2) herbicides are known to have been applied in the area in which they served. See 38 C.F.R. § 3.307(a)(6)(iv); see also VA's M21-1 Adjudication Procedure Manual ("VBA Manual") M-21, Part IV, subpart ii, ch 1, sec. H.4.b. (listing units and other military entities identified as operating in or near the Korean DMZ during the qualified time period). As noted above, this appeal was previously remanded in August 2015. Along with other remand directives, the Board requested that the Joint Services Records Research Center (JSRRC) be contacted to confirm the Veteran's entire unit name and the proximity of his unit to the DMZ during the Veteran's active duty service while stationed at Camp Stanley in South Korea as a switchboard operator from February 15, 1971 to February 4, 1972. The Board also requested that following JSRRC claim development, the Veteran be scheduled for a VA examination to assess the Veteran for PTSD but to also address all current psychiatric and cognitive disorders. The Board separately notes that subsequent to this remand decision, the Veteran's wife submitted an October 2015 lay statement explaining that she asked the Veteran after his March 2015 Board hearing why he had travelled to the DMZ, and that he responded that he had gone with another solider to deliver equipment to include radios and telephones. When the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As this foregoing applies to the Veteran's acquired psychiatric disorder and prostate cancer claims, initially, the Board notes that the AOJ scheduled and completed a VA psychiatric examination in May 2016 prior to completing JSRRC development in May 2017. The Board also notes that JSRRC's May 2017 response to the RO's inquiry regarding the proximity of Camp Hovey and Camp Stanley to the DMZ not responsive. The May 2017 JSRRC response indicated that unit records for 702nd Maintenance Battalion were reviewed and that these records did not document the distance of the battalion's base camps from the DMZ, and also did not document the use, storage, spraying, or transportation of herbicides to include Agent Orange or any specific duties performed by the 702nd Maintenance Battalion unit members along the DMZ. There is no explanation for why the JSRRC or another appropriate service department cannot confirm the proximity of Camp Hovey or Camp Stanley to the DMZ other than to note that the unit records reviewed do not specify. Such information is relevant both to whether the Veteran's reported stressor of being close enough to the DMZ to hear gunfire and other combat activity constitutes a sufficient stressor for PTSD, and to whether the Veteran's report of going to the DMZ to deliver equipment on one occasion can be corroborated. Therefore, additional follow up with the JSRRC or the appropriate service department is necessary to confirm the location of the Camp Stanley, Camp Hovey, and the DMZ during the Veteran's period of service in Korea. Additionally, the Board notes that pursuant to the VBA Manual, prior to issuing a formal finding that VA lacks the information to verify herbicide exposure, in light of the October 2015 lay statement submitted by the Veteran's wife, the AOJ should have provided the Veteran a subsequent development letter and allowed him 30 days to provided additional information about his Korean DMZ service. M-21, Part IV, subpart ii, Ch. 1, sec. H. 4. c. Therefore, on remand, the AOJ should also complete this development action as appropriate. As for the May 2016 VA psychiatric examination, in addition to having been conducted prior to JSRRC development relevant to the Veteran's reported in-service stressors, the Board notes that this examination was not adequate for adjudicatory purposes. The May 2016 examination report does not discuss all of the reported stressors documented by the record, in particular the Veteran's reported stressor that he was close enough to the DMZ that he could hear gunfire and other combat activity. Additionally, the examiner failed to provide etiology opinions regarding the Veteran's other diagnosed psychiatric disorders to include depression, dementia, and cognitive disorder. Moreover, the examiner did not discuss the Veteran's previous diagnoses of PTSD as directed to by the Board's August 2015 remand instructions. Accordingly, remand of this claim for procurement of an adequate VA examination is required. As for the Veteran's TDIU claim, that matter remains inextricably intertwined with the Veteran's pending service connection claims, and therefore, must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Finally, as review of the record reveals that the Veteran is currently receiving VA medical treatment for his claimed disabilities, on remand, any outstanding VA treatment records should be procured. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records relevant to the conditions being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Contact any appropriate service department regarding verification of the proximity of Camp Hovey and Camp Stanley to the Korea DMZ during the Veteran's active duty service from February 15, February 15, 1971 to February 4, 1972. If it is determined that there are no records in any appropriate service department that can confirm the location of the Camp Hovey and Camp Stanley relative to the Korea DMZ, as appropriate, the AOJ should follow up with the Veteran, pursuant to the VBA Manual M-21, Part IV, subpart ii, ch. 1, sec. H. 4. C, as discussed above. 3. Schedule the Veteran for a VA psychiatric and cognitive disorder examination to be conducted after the requested development in (1) and (2) has been completed. The record and a copy of this remand must be reviewed by the examiner. All necessary tests should be conducted and all clinical findings reported in detail. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. a. The examiner is requested to provide an opinion as to the diagnosis of all psychiatric and cognitive disorders found to be present, including, if appropriate, PTSD. In determining whether the Veteran has PTSD the examiner should address the following: i. The Veteran's reported in-service stressors to include any stressors reported by him at the VA examination and the following stressors that have been documented by the claims file: 1. being close in proximity to the DMZ such that he heard gunfire and mine explosions (as reported by the Veteran in an April 2010 lay statement); 2. hearing of friends that were killed in the Republic of Vietnam (as reported by the Veteran in an April 2010 lay statement); 3. being among people in Korea that spoke a language he did not understand; and 4. Being far away from his home, family, and friends and not knowing if he would return. ii. "[F]ear of hostile military or terrorist activity" means, in pertinent part, that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and a Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. b. Then the examiner must provide the following etiology opinion with regard to all psychiatric and cognitive disorders diagnosed: i. whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current psychiatric and/or cognitive disorder(s), had its clinical onset during active duty, if a psychosis was manifest within one year of service, or if a current psychiatric disability is related to any in-service disease, injury, or event, to include any of the alleged stressor events, to include being fearful of incoming enemy gunfire. c. With regard to PTSD, if the examiner finds that the Veteran does not have PTSD, the examiner should comment on the significance of the February 2010 notation that the Veteran was having "troubles with possible PTSD," the September 2011 and July 2012 VA treatment clinic notes wherein the treating professional listed PTSD among the Veteran's complaints, and the September 2013 inclusion of PTSD in the Veteran's VA "problem list." d. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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 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. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs