Citation Nr: 1800508 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-15 160 ) 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). 2. Entitlement to service connection for bronchitis. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for cervical degenerative arthritis, with spondylosis and right arm radiculopathy. 5. Entitlement to service connection for degenerative arthritis of the arms, wrists, and hands, to include as secondary to cervical degenerative arthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to January 1969. He also performed active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2006 and April 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing in October 2017 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for PTSD specifically, the Board notes that the Veteran has been diagnosed with and has sought treatment in the past for other acquired psychiatric disorders. The Board therefore finds that, pursuant to Clemons, the Veteran's claim for PTSD is more accurately characterized as one for any acquired psychiatric disorder. The issues of entitlement to service connection for an acquired psychiatric disorder and bronchitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Hypertension was not manifested during the Veteran's active duty service or within one year after separation from service, nor is it otherwise related to active duty, ACDUTRA, or INACDUTRA. 2. Cervical degenerative arthritis, with spondylosis and right arm radiculopathy, was not manifested during the Veteran's active duty service or within one year after separation from service, nor is it otherwise related to active duty, ACDUTRA, or INACDUTRA. 3. Degenerative arthritis of the arms, wrists, and hands was not manifested during the Veteran's active duty service or within one year after separation from service, nor is it otherwise related to active duty, ACDUTRA, INACDUTRA, or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for cervical degenerative arthritis, with spondylosis and right arm radiculopathy, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for degenerative arthritis of the arms, wrists, and hands, have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 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). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24) (2012); 38 C.F.R. § 3.6(a) and (d) (2017). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA), or from injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In summary, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); 38 C.F.R. § 3.6(a). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the Veteran would not qualify as a "Veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola v. Peake, 22 Vet. App. 320, 324 (2008). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "Veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a Veteran. Paulson, 7 Vet. App. at 470. Even for Veterans who have achieved "Veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the Veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the Veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 45-46. Moreover, if the claimant has not achieved "Veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "Veteran" status, the claimant must demonstrate both elements of aggravation-(1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In such instances, the claimant is not entitled to the presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. Certain enumerated diseases, to include cardiovascular disease and arthritis, will be service connected on a presumptive basis if a Veteran served 90 days or more of continuous, active service, and the disease manifested to a compensable degree within one year following the date of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A nexus between the current disability and service may be established by evidence of continuity of symptomatology since service for a listed chronic disability. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1337. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Hypertension The Veteran contends that service connection is warranted for hypertension. The Board finds that the preponderance of the evidence is against the Veteran's claim. Hypertension is defined by VA regulations to mean that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note (1). Hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Hypertension is compensable at a 10 percent rating when diastolic blood pressure is predominantly 100 or systolic pressure is predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. The Veteran's service treatment records during active duty are silent for any diagnosis, symptoms, or treatment of hypertension. In addition, the Veteran's blood pressure at his January 1969 separation examination had a reading of 140/80. A March 1972 Reserve enlistment examination indicates that the Veteran had a normal vascular system. His blood pressure reading at that time was noted to be 130/80, or within normal limits. Therefore, the Veteran was presumed sound on entrance. As the Veteran's hypertension did not manifest to a compensable degree within one year after separation from service, service connection on a presumptive basis is not warranted. Furthermore, 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 Veteran's claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The earliest evidence signifying hypertension was during a periodic examination in October 1987, while the Veteran was on inactive duty for training. At that time it was noted that the Veteran had borderline high blood pressure (emphasis added) and should undergo blood pressure checks. The Veteran was subsequently diagnosed with hypertension. The Board notes that hypertension is classified as a disease, and therefore service connection is not warranted for any disease incurred or aggravated during a period of INACDUTRA. The Veteran underwent a VA examination in August 2013. The examiner opined that it was less likely than not that the Veteran's hypertension is related to, or aggravated by his military service to include ACDUTRA. The examiner reasoned that the standard one weekend per month and two weeks during the year that the Veteran served while in the Reserve would not be enough to aggravate his blood pressure beyond its normal progression. The Board finds this to be probative evidence weighing against the Veteran's claim. In making its determination, the Board has considered the Veteran's lay statements, where he reported that he developed hypertension while in service. As a lay person without medical training or credentials, the Veteran is certainly competent to attest to his symptoms and any diagnosis he received from a doctor. See Layno v. v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, as a lay person, the Veteran is not competent to speak to the complex issue of the nature and etiology of his hypertension, to include a nexus between service and his hypertension. Such an opinion requires specialized medical knowledge and training. With hypertension specifically (per Diagnostic Code 7101), medical testing is required to ascertain blood pressure readings, and medical training is needed to ascertain whether elevated blood pressure readings are indicative of hypertension. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension. 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 hypertension is denied. See 38 U.S.C. § 5107. Cervical Arthritis It is not in dispute that the Veteran has cervical degenerative arthritis, with spondylosis, with right arm radiculopathy. What must be resolved is whether the current disability is etiologically related to service. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for cervical arthritis. At the outset, the Board notes that arthritis (other than traumatic arthritis) is classified as a disease, and service connection is not warranted for any disease allegedly incurred or aggravated during a period of INACDUTRA. Furthermore, the Veteran's cervical arthritis did not manifest to a compensable degree within one year after separation from service, therefore service connection on a presumptive basis is not warranted. An August 1999 letter from Dr. D.S. is probative medical evidence weighing against the Veteran's claim. The private physician stated that it is within reasonable medical certainty that the Veteran's neck symptoms are a result of age related changed in the cervical spine as well as repetitive motion and activity due to his job. In addition, an August 2013 VA examination is also negative medical evidence weighing against the Veteran's claim. The examiner concluded that it is less likely than not that the Veteran's neck condition is related to or aggravated by military service to include ACDUTRA. The examiner stated that the Veteran's neck condition was age-related. The examiner reasoned that standard one weekend per month and two weeks during the year that the Veteran served while in the Reserve would not be enough to aggravate his degenerative joint disease of the neck beyond its normal progression. The Veteran has presented no medical evidence contradicting the conclusions described above. The Board has also considered the Veteran's own statements, made in support of his claim. At the outset, the Board notes that, in this case, the Veteran has not demonstrated any specialized training or credentials to indicate that he is capable of rendering a competent opinion as to a diagnosis or medical causation. Although lay persons are competent to opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, cervical arthritis, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (lay persons not competent to diagnose cancer). Notably, under 38 C.F.R. § 4.71a, Diagnostic Code 5003, arthritis is shown by x-ray. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for cervical degenerative arthritis, with spondylosis, with right arm radiculopathy. 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 cervical degenerative arthritis, with spondylosis, with right arm radiculopathy is denied. See 38 U.S.C. § 5107. Arms, Wrists, and Hands Arthritis Lastly, the Veteran contends that service connection is warranted for degenerative arthritis of the arms, wrists, and hands, to include as secondary to cervical degenerative arthritis. However, the Board finds that the preponderance of the evidence is against his claim. Again, the Board notes that arthritis (other than traumatic arthritis) is classified as a disease, and service connection is not warranted for any disease allegedly incurred or aggravated during a period of INACDUTRA. Furthermore, the Veteran's arm, wrist, and hand arthritis did not manifest to a compensable degree within one year after separation from service, therefore service connection on a presumptive basis is not warranted. Turning to the issue of direct service connection, there is no competent, credible evidence that the Veteran's arthritis of the arms, wrists, and hands arthritis was caused or aggravated by any period of ACDUTRA or active duty service. An April 2013 VA examination is probative medical evidence weighing against the Veteran's claim. The examiner opined that the Veteran's arm, wrist and hand arthritis was less likely than not incurred in, or caused by service, to include his periods of ACDUTRA. In addition, the examiner determined that the Veteran's disability was less likely than not aggravated beyond its natural progression by his Reserve service. In support of his conclusion, the physician stated that the Veteran's age was the strongest risk factor for his osteoarthritis. Furthermore, the examiner did not find evidence over and above the effects of his normal aging and work duties which would have aggravated his disability to a significant degree beyond its natural progression. With regard to granting service connection on a secondary basis, the Veteran is currently only in receipt of service connection for bilateral hearing loss. However, neither the Veteran contends, nor the evidence of record supports, a determination that the Veteran's arm, wrist, and hand arthritis is caused or aggravated by his service-connected hearing loss. As such, service connection cannot be established on a secondary basis, as service connection for a cervical spine disorder - the disability which has been described as causal - has not been established. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for degenerative arthritis of the arms, wrists, and hands. 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 degenerative arthritis of the arms, wrists, and hands is denied. See 38 U.S.C. § 5107. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for cervical degenerative arthritis, with spondylosis, with right arm radiculopathy, is denied. Entitlement to service connection for degenerative arthritis of the arms, wrists, and hands, to include as secondary to cervical degenerative arthritis, is denied. REMAND Acquired Psychiatric Disorder The Veteran was previously denied service connection for PTSD based on the lack of a verified stressor. See April 2011 Rating Decision. The RO found that the Veteran submitted insufficient credible supporting evidence that his claimed in-service stressor occurred and consequently did not send the information to the U.S. Joint Service Records Research Center (JSRRC) for verification. However, as noted above, given the other psychiatric diagnosis of record and in accordance with the ruling in Clemons, the Veteran's appeal for service connection for psychiatric disability must be broadly construed to encompass claims for service connection for any acquired psychiatric disorder, to include PTSD. Given that there is a diagnosis of a psychiatric disorder, this claim must be remanded so that a comprehensive VA examination addressing etiology can be afforded. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Bronchitis The Veteran was afforded a VA examination in April 2013 to assess the etiology of his bronchitis. However, the Board finds this examination inadequate. In his report, the examiner determined that the Veteran did not have a diagnosed respiratory condition and that he was not taking medication prescribed for respiratory problems. A review of the record indicates that the Veteran is in fact taking a prescribed medication for breathing issues. See e.g., February 2017 Mental Health Outpatient Note (list of active outpatient medications); October 2017 Board Hearing Transcript. As such, the Board finds that a new VA examination to determine the nature and etiology of the Veteran's bronchitis is warranted. While on remand, the RO should also attempt to obtain the Veteran's updated VA treatment records and any additional relevant private medical records, particularly as he discussed ongoing mental health treatment during his hearing. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to the claim, including any private treatment records following proper VA procedures. These should include records from facilities in Charleston and Goose Creek, South Carolina, as noted during the Veteran's hearing in reference to the psychiatric claim. 2. After completing the requested development, afford the Veteran a VA mental health examination to determine the precise nature of his acquired psychiatric disorder. The Veteran's claims file must be made available to the examiner in conjunction with the examination. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. The examiner should confirm whether the Veteran currently has a diagnosed psychiatric disorder. The examiner should then provide an opinion as to the following: (a) If PTSD is diagnosed, then is it at least as likely as not (a 50 percent or greater probability) that any of the claimed stressors caused the Veteran's PTSD? (b) For any psychiatric diagnosis other than PTSD, is it at least as likely as not (a 50 percent or greater probability) that the Veteran's disability began in service or is otherwise related to a disease, event, or injury in service? A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. 3. Afford the Veteran a VA respiratory examination to assess the nature and etiology of his bronchitis. The entire claims file must be made available to the clinician, and the opinion should include discussion of the Veteran's documented medical history and assertions. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. After conducting a thorough examination of the Veteran and performing any clinically indicated diagnostic testing, the examiner should provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's currently diagnosed bronchitis began in service, is related to the Veteran's service, or is otherwise related to a disease, event, or injury in service. A complete rationale for any opinion provided is requested. The absence of evidence of treatment for bronchitis in the Veteran's service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. 4. Finally, after completing the above actions, as well as any other development that may be warranted, readjudicate the Veteran's claims in light of all the evidence of record. If any benefit on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). This appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs