Citation Nr: 1715370 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 09-27 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for cerebral palsy. 3. Entitlement to basic eligibility for nonservice-connected pension benefits. WITNESSES AT HEARING ON APPEAL The Appellant and the Appellant's Wife ATTORNEY FOR THE BOARD C. Finch, Associate Counsel INTRODUCTION The Appellant served on active duty from April 1967 to July 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Appellant testified in November 2014 before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of this proceeding is associated with the electronic record. In January 2015, the Board remanded the Appellant's claim for entitlement to nonservice-connected pension, determining it to be inextricably intertwined with the issues of entitlement to service connection for depression and cerebral palsy. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). On remand, the RO adjudicated the service connection claims in a June 2016 rating decision and the issue of entitlement to basic eligibility for nonservice-connected pension benefits in a June 2016 supplemental statement of the case (SSOC). Therefore, these issues are now properly before the Board. FINDINGS OF FACT 1. There is no clear and unmistakable evidence that the Appellant's depression pre-existed his military service and was aggravated by service. 2. The Appellant is presumed to have entered service in sound condition because his psychiatric evaluation was normal upon enlistment examination. 3. The preponderance of the evidence is against a finding that the Appellant's current depression is causally related to, or aggravated by, an event, injury, or disease in service. 4. The preponderance of the evidence is against a finding that the Appellant has cerebral palsy which is causally related to, or aggravated by, an event, injury, or disease in service. 5. The Appellant did not have at least 90 days of active service during a period of war and was not discharged from service due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. The criteria for entitlement to service connection for cerebral palsy have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 3. The criteria for nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 101(2), 1521, 5107(a) (West 2014); 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist an Appellant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Appellant of any information, and any medical or lay evidence, which is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the Appellant 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 Appellant is expected to provide. Ideally, the notice should be provided to the Appellant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, the Board finds that VA has satisfied its duty to notify. Regarding the Appellant's claims for service connection for depression and cerebral palsy, the RO provided the Appellant with proper notice by a letter dated in March 2016. This notice complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim, and Quartuccio, identifying the evidence necessary to substantiate a claim and the relative duties of VA and the Appellant to obtain evidence. As to the Appellant's wartime pension issue on appeal, no VCAA notice was provided to the Appellant. Regardless, the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). See also Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOGCPREC 5-2004 (June 23, 2004). The present pension case, based on alleged wartime service, as is further discussed below, is decided as a matter of law. Therefore, the Board finds that no further action is necessary under the statutory and regulatory duties to notify and assist for this particular issue. Accordingly, the Appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. VA has obtained available service treatment records (STRs) and pertinent post-service medical records. The Appellant gave testimony at a travel board hearing at the RO in November 2014. In January 2015, the Board remanded the Appellant's claim for entitlement to nonservice-connected pension benefits to the AOJ, after finding the issue inextricably intertwined with the adjudication of his service connection claims. See Harris, 1 Vet. App. at 180. The RO denied the Appellant's claims for service connection in June 2016 and readjudicated the issue of entitlement to nonservice-connected pension benefits. As such, the Board finds that there has been substantial compliance with the January 2015 Board remand and that the issues are now properly before the Board for appellate review. See Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). VA afforded the Appellant a VA examination in July 2012. The examiner considered the relevant history of the Appellant's disability, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 12, 123-24 (2007). The Board finds that the July 2012 examination is adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). In addition, the Appellant was provided a VA mental health examination in May 2016 to determine whether his pre-existing depression was aggravated by service. As discussed below, the Board finds that the Appellant did not have chronic depression prior to entering service. In service connection claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Appellant's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In this case, no medical examination or opinion has been obtained with respect to the Appellant's direct service connection claim for depression based on a finding that he was presumed sound upon entering service. Nevertheless, the Board finds that the evidence does not satisfy the standards of McLendon because there is no credible indication of a relationship between the claimed disability and service. The U.S. Court of Appeals for Veterans Claims has held that VA is not required to provide a medical examination when, as in this case, there is no credible evidence of an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore the Board finds that a remand for an examination or opinion is not necessary to decide the claim. See 38 C.F.R. § 159(c)(4). All known and available records have been obtained and associated with the Appellant's claims file, and the Appellant has not contended otherwise. In April 2016, the Appellant indicated that he had no other information or evidence to submit for Board consideration. Therefore, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. VA has complied with the notice and assistance requirements, and the Appellant is not prejudiced by a decision on the claim at this time. Legal Criteria and Analysis At the outset, the Board notes that it has reviewed all of the evidence in the Appellant's claims file, with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. I. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of establishing service connection, every Appellant shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Appellant's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.") It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Appellant cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And in that circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C.A. § 1153, and it's implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Depression The Appellant avers that his depression was aggravated by service. See November 2014 Hearing Transcript; October 2016 VA Form 9. STRs show that on his January 1967 enlistment Report of Medical History the Appellant checked a box indicating that he had depression or excessive worry. Therefore, the evidence of record presents the question of whether the Appellant's depression pre-existed service. As noted, the Appellant's Report of Medical History upon entering his April 1967 to July 1967 period of active duty service indicates that he suffered from depression. However, the Appellant's endorsement of depression on his medical history form, by itself, does not constitute a disease or disability being noted at entry to service. See 38 C.F.R. § 3.304(b)(1), (3); Crowe, 7 Vet. App. at 238. Only those conditions that are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Because depression was not noted on the report of the Appellant's service entrance examination, it is presumed that the Appellant was in sound condition when he entered service. The Appellant's sound condition is further supported by the entrance examiner's report. His psychiatric clinical evaluation was noted to be "normal" on the Report of Examination, and the examiner entered a designation of "1" under "S" for "psychiatric" under the physical profile block, indicating that he possessed a high level of medical fitness and, consequently, was medically fit for any military assignment. Hanson v. Derwinski, 1 Vet. App. 512 (1991); see Odiorne v. Principi, 3 Vet. App. 456, 457 (1992), quoting 9-3(c)(1) Army Regulation 40-501, Change 35 (Feb. 9, 1987). Furthermore, there is no competent credible evidence of record that the Appellant was receiving, or had received, treatment at the time of his entry into active duty. In fact, during a May 2016 VA examination, the Appellant denied any pre-military history of mental health evaluation and/or treatment. Therefore, the Board finds that although the Appellant asserts that he had pre-existing depression, the evidence is not clear and unmistakable as to the existence of depression at the time of entrance into service. Even if the Appellant had a pre-existing disability of depression, there is not clear and unmistakable evidence that it was aggravated by service. As such, based on the totality of the evidence, the Board finds that the evidence does not rebut the presumption of soundness. There is no clear and unmistakable evidence that the Appellant's depression pre-existed his entry into service and was not aggravated by service. Therefore, the Appellant is presumed to have entered service in sound condition. The Board notes that it is not in dispute that the Appellant currently has a diagnosis of major depressive disorder (MDD). What must be resolved is whether his current disability is etiologically related to service. The Board finds that the preponderance of the evidence is against the Appellant's claim for service connection for depression. During the November 2014 travel board hearing, the Appellant contended that his depression started in service; however, review of the record is silent for any diagnosis or treatment of depression while in service. In support of his claim, the Appellant points to his discharge from service as evidence of an in-service event. The Board does not find the Appellant's argument persuasive. Specifically, just six weeks into the Appellant's enlistment, a May 1967 neuropsychiatric examination reported that the Appellant desired to be separated from service. In addition, the reason for the Appellant's discharge from service was not depression, but an "inadequate personality" under the Separation Program Number (SPN) for unfitness, ineptitude. The discharge documents associated with the Appellant's personnel record further support this finding. A May 1967 neuropsychiatric examination in service refers to the Appellant as having a "personality disorder." The Board notes that the Appellant has not provided, and evidence of the record does not reflect, that a personality disorder is synonymous with depression. In addition, the Appellant's personnel record contains five statements from commanding officers in support of his discharge, all of which are negative for a mention depression. The letters also do not reflect that the Appellant displayed any symptoms of depression, such as sadness, despair, or discouragement. See Dorland's Illustrated Medical Dictionary 492 (32nd ed. 2012). Furthermore, there are no clinical records indicating that the Appellant was diagnosed with or treated for depression either during service, or within a year following discharge from service. The Board finds that if the Appellant had depression in service, it would have been reasonable for it to have been noted as he underwent psychological testing during service. See May 1967 neuropsychiatric examination. Even more importantly, other than the Appellant's notation on his medical history form on entry, the evidence of the record contains no mention of depression until June 2005, almost 40 years after separation from service. See June 2005 Sea-Mar treatment record. Furthermore, during a May 2009 Social Security Administration (SSA) psychiatric evaluation, the Appellant reported that he had been struggling with depression for a year and felt that it was due to the fact that he was tired a lot and could not work. See May 2009 SSA Comprehensive Psychiatric Evaluation. The Board finds that if the Appellant had had symptoms of depression since service, it would have been reasonable for him to have reported such rather than state an onset date of more than four decades after separation from service. In addition, when discussing the etiology of his depression, the Appellant did not state that it was due to service, or aggravated by service. To the contrary, the Appellant stated that his depression was due to fatigue and inability to work. See May 2009 SSA evaluation. As such, the Board finds that any clinical opinion indicating that the Veteran's depression is due to or aggravated by service lacks probative value. Therefore, based on the record as a whole, to include the STRs, the SSA records, and the Appellant's statement as to the onset and cause of his depression, the Board finds that any statement as to depression since service is less than credible. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for depression. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for depression, is denied. See 38 U.S.C.A §5107. Cerebral Palsy The Appellant contends that service connection is warranted for cerebral palsy. However, the Board finds that there is simply no competent credible evidence of record indicating that the Appellant is diagnosed with cerebral palsy. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (with the absence of proof of a present disability there can be no valid claim). At the very least, the evidence must show that at some point during the appeal period the Appellant has the disability for which benefits are being claimed. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). In this case, a July 2012 VA examination determined that the Appellant showed no signs of cerebral palsy. An earlier June 2009 SSA case analysis also determined that cerebral palsy was not established in the record. Therefore, the only evidence that supports the Appellant's contention that he has cerebral palsy is his own statements. While lay persons are able to opine as to certain medical issues, the issue of a diagnosis of cerebral palsy falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even assuming arguendo that the Appellant has a diagnosis of cerebral palsy, there is no competent credible evidence that it is as likely as not that any cerebral palsy had its onset in service or is otherwise related to active duty, to include aggravation by service. The Appellant has not claimed that his alleged cerebral palsy had its onset in service, and the evidence of record shows that he has characterized his alleged cerebral palsy as a "life-long condition" that has been present since birth. See September 2011 VA Form 21-4138; see also December 2004 Sea Mar Treatment Record, April 2016 VA Form 21-4138. However, cerebral palsy was not noted on entrance and the Appellant is presumed to have been sound with regard to such a disability. Furthermore, the Board finds that there is no clear and unmistakable evidence that the Appellant had a diagnosis of cerebral palsy prior to service, or that the Veteran's alleged cerebral palsy was aggravated by service. In addition, the Appellant's STRs are negative for complaints of, or treatment for, cerebral palsy. Review of the record shows a diagnosis of mild cognitive impairment in October 2015; however, the Board notes that cerebral palsy is not a cognitive disorder, but a "persisting, nonprogressive motor disorder appearing in young children." Dorland's Illustrated Medical Dictionary 1365 (32nd ed. 2012). Furthermore, the Board finds the Appellant's contention that ataxia from his alleged cerebral palsy caused his discharge to be unsubstantiated by the record. Not only is the medical evidence of record inconsistent regarding the occurrence of ataxia, but again, there is no competent credible evidence of ataxia in the record until June 2005. See June 2005 private treatment record, July 2012 VA examination, October 2012 VA primary care treatment note. Furthermore, a July 2012 VA examination reports that the Appellant's ataxia is likely due to another central nervous system abnormality, not cerebral palsy. As such, the earliest evidence of a possible history of cerebral palsy is during a July 2012 VA examination. During that VA examination, the Appellant reported being diagnosed with cerebral palsy in 1997, 30 years after separation from service. While not dispositive, the lapse of time between separation from active service and the earliest documentation of a claimed disability is a factor that weighs against the Appellant's claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As review of the record fails to reflect a diagnosis of cerebral palsy based on clinical evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for cerebral palsy. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to service connection for cerebral palsy, is denied. See 38 U.S.C.A §5107. II. Nonservice-Connected Pension Benefits The Appellant is seeking entitlement to basic eligibility for nonservice-connected pension. Non-service connected pension is generally payable to a Appellant who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521. A threshold requirement for entitlement to a nonservice-connected pension requires that the Appellant have 90 or more days of service during a period of war. Id. Findings by the U.S. service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Appellant's DD 214 reflects he entered active service on April 14, 1967 and was discharged on July 10, 1967. Therefore, he served during the period of the Vietnam War. On his DD 214, the Appellant was credited with active service for a period of two months and 27 days, or a period of 87 days. Accordingly, the Appellant had less than the required 90 days of service during a period of war. The Board has considered that VA regulations provide an exception to the 90 days of wartime service requirement if the Appellant was discharged from service due to a service-connected disability. 38 U.S.C.A. § 1521, 38 C.F.R. § 3.3. In this case, the Appellant contends that he was discharged from service against his will due to cerebral palsy. See October 2009 VA Form 21-4142. However, the Appellant is not currently service-connected for cerebral palsy, or for any other disability. Additionally, his service personnel records do not suggest he was discharged due to any illness or lack of ability to complete the physical requirements. Instead, his DD 214 SPN indicates that he was discharged from service due to unsuitability, ineptitude (SPN 260). See DD 214; see also June 1967 Letter to Commanding Officer. Therefore, the evidence does not establish he was discharged from service due to any service-connected disability, and the exception for the 90 days service requirement does not apply. Because the evidence reflects the Appellant was credited with less than 90 days of active duty service, including during a period of war, he is ineligible for nonservice-connected pension benefits. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. Therefore, the Appellant's claim for a nonservice-connected pension is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to service connection for depression is denied. Entitlement to service connection for cerebral palsy is denied. Entitlement to basic eligibility for nonservice-connected pension benefits is denied. ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs