Citation Nr: 1808431	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-56 525	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for a right shoulder disability. 

3. Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression.

4. Entitlement to a rating in excess of 20 percent since August 20, 2014, for a left shoulder disability.

5. Entitlement to a compensable rating since August 20, 2014, for a scar disability. 


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017).  38 U.S.C. § 7107 (a) (2) (West 2014).

The Veteran had active service from October 1965 to September 1967.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The Board has re-characterized the issue of entitlement to service connection for anxiety and depression to more broadly encompass entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled). The claim is remanded to the AOJ for further development. 

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. 

The issues of entitlement to an increased rating for a left shoulder disability and a scar disability, and entitlement to service connection for an acquired psychiatric disability, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1. The Veteran's hypertension did not have its onset in service or within the presumptive period after service.

2. The Veteran's right shoulder disability was not incurred in service.


CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).

2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist
	
VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.327 (2017).

The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In several letters of record, the Veteran was informed of the type of evidence needed to develop his claims and what the VA would do to assist the Veteran obtain the necessary evidence. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
All necessary assistance to obtain evidence has been provided. The Veteran's service treatment and personnel records, pertinent post-service medical records, VA examination reports, and personal statements have been added to the case file. There is no indication of any additional relevant evidence that has not been obtained. 

As to the hypertension and right shoulder claim decided, there is no probative evidence suggesting the claimed conditions are related to service. Rather, only the Veteran's general conclusory statement that his claimed disabilities are related to service is of record, which is insufficient to entitle a veteran to a medical examination under  38 U.S.C. § 5103A (d) (2) (B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that "[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran's disability case"). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).

VA has satisfied its duty to notify and assist and the Board may proceed with appellate review.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R.          § 3.303 (a). "To establish a right to compensation for a present disability, 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension, as cardiovascular-renal disease, and arthritis are "chronic" diseases listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). 

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension and arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

A. Hypertension 

"Hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm Hg systolic and 90 mm Hg diastolic to as high as 200 mm Hg systolic and 110 mm Hg diastolic as reflective of hypertension. See Dorland's Illustrated Medical Dictionary, 896 (32nd ed. 2012). Similarly, for VA rating purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm Hg or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90 mm Hg. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). For VA purposes, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id.

VA treatment records indicate the Veteran reported a history of hypertension in December 2008 and that he was diagnosed with hypertension in August 2010.

The Veteran's August 1965 report of medical history at induction indicates he denied cardiac trouble. His clinical heart, lungs and chest evaluation was normal, with a blood pressure reading of 120/80. Service treatment records do not indicate any complaints, diagnoses or treatments for symptoms related to hypertension in service. His blood pressure reading at discharge was 102/68.

The preponderance of the evidence is against the claim of service connection for hypertension. There is no probative medical evidence that indicates the Veteran demonstrated the onset of hypertension in service or within the presumptive period after service. The claim for service connection is denied.

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).




B. Right shoulder

At the September 2014 VA medical examination for his left shoulder, the Veteran's right shoulder was diagnosed with degenerative joint disease and supraspinatus and infraspinatus tendon tears. 

The Veteran's August 1965 report of medical history at induction indicates the Veteran denied having a "trick" shoulder or other bone or joint deformities at induction. His service treatment records do not indicate any complaints, diagnoses or treatments for his right shoulder in service. His left shoulder demonstrated recurrent dislocations and required surgery in service, and has been service-connected since his discharge in October 1967. His clinical evaluation at discharge was normal.

The preponderance of the evidence is against the claim of service connection for a right shoulder disability. There is no probative medical evidence that indicates the Veteran's right shoulder disability was incurred in service, or diagnosed within the presumptive period after service. The claim for service connection is denied.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for hypertension is denied.

Service connection for a right shoulder disability is denied.





REMAND

The Veteran contends his acquired psychiatric diagnoses are related to his service, or are secondarily related to his service-connected left shoulder disability. He has not been afforded a VA medical examination to determine the etiology of any acquired psychiatric diagnoses. However, he submitted a private psychological evaluation that suggests his anxiety disorder is related to his left shoulder pain.

In addition, the Veteran reported in a December 2014 statement that his service-connected left shoulder disability has worsened and demonstrates symptoms warranting a higher rating. Since over three years have passed since the September 2014 VA medical examination, a new examination is needed to fully and fairly evaluate his disability.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c).  Expedited handling is requested.)

1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record.

2. Obtain any outstanding VA medical records and associate them with the claims file.

3. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the nature and etiology of any acquired psychiatric diagnoses. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. A rationale should be given for all opinions and conclusions rendered.

Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions:

a) Were any of the Veteran's current acquired psychiatric diagnoses incurred in service or caused by an in-service injury, event or illness?

b) Are any of the Veteran's current acquired psychiatric diagnoses proximately due to or aggravated (e.g. worsened, and if so, to what degree) by any of the Veteran's service-connected disabilities? [i.e. left shoulder rotator cuff with arthritis and left shoulder scar] 

c) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:

* The August 1965 entrance report of medical history and examination indicated a clinically normal psychiatric evaluation.

* The September 1967 separation report of medical history and examination indicated a clinically normal psychiatric evaluation.

* Service treatment records do not indicate any complaints, diagnoses or treatments for any acquired psychiatric diagnoses. 
 
* In August 2014, the Veteran was assessed with depression secondary to his financial situation. See VBMS entry dated May 11, 2017, titled "Correspondence," page 6 of 120.

* In August 2015, the Veteran was diagnosed with an anxiety disorder due to another medical condition. See VBMS entry dated November 11, 2016, titled "VA Examination." 

* Service connection is in effect for left shoulder rotator cuff with arthritis and a left shoulder scar.

A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. 

THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT.

4. Schedule the Veteran for an appropriate VA examination, consistent with VA rating protocols, to determine the severity of his left shoulder disabilities. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished and all clinical findings should be reported in detail. An explanation should be given for all opinions and conclusions rendered.

5. Then, review the VA examiner's report(s) to ensure that he or she adequately responded to the above instructions, including providing an adequate explanation in support of the requested opinions. If the report(s) is (are) deficient in this regard, return the case to the VA examiner for further review and discussion.

6. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication.

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 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 (West 2014).




______________________________________________
Vito A. Clementi 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs