Citation Nr: 1622929 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 14-15 882A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a digestive disability with bleeding ulcer. 2. Entitlement to service connection for a bilateral shoulder disability. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for a neck disability. 6. Entitlement to service connection for a right elbow disability. 7. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Michele Mansmann, Attorney ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from September 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the RO. The issues of entitlement to service connection for a digestive disability, a bilateral shoulder disability, a right elbow disability, and a right knee disability are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of right ear hearing loss. 2. The Veteran does not have a current diagnosis of PTSD or any other psychiatric disability. 3. The credible evidence is against a finding that the Veteran has any neck disability that was caused by service, and clear and unmistakable evidence is against a finding that a preexisting neck disability was aggravated during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 2. The criteria for service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). 3. The criteria for service connection for a neck disability have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that VA has satisfied the duty to notify through a December 2007 letter. The claims were then adjudicated in December 2008. Relevant to the duty to assist, the Veteran's service medical records, VA treatment records, and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide the pending appeal. Additionally, the Veteran was provided VA examinations for service connection for PTSD and hearing loss, and those examinations are sufficient to decide the claims. Although the Veteran has not received a VA examination with regard to the claim for service connection for a neck disability, the Board finds that the duty to assist to obtain an examination has not been triggered with respect to that claim. Not only is there no diagnosis of a cervical spine disability, but the Veteran's claim of the contended in-service event lacks inherent credibility such that the evidence weighs heavily against the claim. The Board notes that mere conclusory generalized lay statement that service event or illness caused the claimant's current disability is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540 (1991). VA has satisfied the duty to notify and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing error is harmful or prejudicial falls on party attacking agency decision). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of an etiological relationship between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. § 3.304 (2015); Caluza v. Brown, 7 Vet. App. 498 (1995). Alternatively, service connection may be established by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of that service, that disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of that disease during the period of service. Psychoses, organic diseases of the nervous system such as sensorineural hearing loss, and arthritis are presumptive diseases with a presumptive period of one year. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Every Veteran 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 that service. 38 U.S.C.A. § 1111 (West 2014). Thus, when no preexisting condition is noted on entry into service, the Veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004). However, if a preexisting disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the Veteran may bring a claim for service-connected aggravation of that disability. Jensen v. Brown, 19 F.3d 1413 (Fed.Cir.1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). In considering whether to apply the presumption of aggravation, the Board must first determine whether there was an increase in the disability's severity and, if so, whether it was beyond the natural progression of the disease. 38 C.F.R. § 3.306(a) (2015). The claimant bears the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004). Until the claimant shows an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to VA. Once the presumption has been established, the burden shifts to VA to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed.Cir.2004); Horn v. Shinseki, 25 Vet.App. 231 (2011). Right Ear Hearing Loss A February 2012 VA examination shows hearing thresholds in the right ear that do not meet the regulatory criteria to be considered as a disability for VA purposes. 38 C.F.R. § 3.385 (2015). VA and private treatment records do not show any audiometric findings that meet the regulatory requirements to be considered a disability for VA purposes. The audiometric findings during service also do not show right ear hearing loss pursuant to VA regulation. There is no indication of record that the Veteran's right ear hearing thresholds have met the necessary criteria at any timing during or contemporary to the pendency of the claim. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, while the Veteran contends that he has hearing loss in the right ear related to service, because the hearing loss does not meet the criteria specifically set forth by the VA to be considered a disability, service connection for right ear hearing loss must be denied. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Psychiatric Disability, to Include PTSD The Veteran contends that he has PTSD which was caused or aggravated by service in Vietnam. However, on February 2012 VA examination, complete mental status examination did not find that a diagnosis of PTSD was warranted. Rather, the examiner concluded that the Veteran did not suffer from any psychiatric disability. The examiner explained that while the Veteran may experience nightmares related to service stressors, he did not exhibit the necessary symptoms to be diagnosed with PTSD or any other psychiatric disorder. VA treatment records document in 2004, prior to the appeal period, that the Veteran had PTSD symptoms. However, no formal psychiatric evaluation was accomplished to determine whether a diagnosis was warranted. In February 2005, a routine PTSD screen was negative. The evidence does not show that the Veteran receives treatment for any psychiatric disability. While the Veteran is competent to describe symptoms, such as nightmares related to service experiences, and other feelings like anger or sadness, he is not competent to provide a psychiatric diagnosis, such as PTSD, which requires medical training. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The 2012 VA examination was based upon a review of the record and thorough interview with the Veteran, and was well-explained. The Board places greater probative weight on the VA examination than on the Veteran's lay contentions because of the training and expertise of the examiner. There is no contrary competent evidence that show that the Veteran warrants a diagnosis of PTSD or any other psychiatric disability. In the absence of evidence showing that the Veteran has a current psychiatric disability, service connection cannot be granted. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the competent and probative evidence is against the claim. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). Neck Disability The Veteran contends that he injured his neck while stationed in Vietnam when the jeep that he was riding in came to a quick stop. He contends that he has had neck pain ever since and that a chiropractor has told him that he has a neck disability. However, the Board finds that the preponderance of the evidence is against the claim for service connection for a neck disability on a direct basis. The Board further finds clear and unmistakable evidence that a preexisting neck disability was not aggravated during service, as the evidence does not show any increase in disability during service. A review of the service medical records shows that on October 1964 entrance examination, the Veteran reported having sustained a whiplash injury to the neck prior to service. The service records are otherwise negative for any indication of any neck injury, neck symptoms, or the jeep incident described by the Veteran. In this case, the Board finds that the Veteran sustained a whiplash injury to the neck prior to service, as was noted on entry into service. 38 U.S.C.A. § 1111 (West 2014). The Board also finds no indication that a pre-existing whiplash injury underwent any permanent aggravation in service, as the service records are entirely silent for neck symptoms or complaints, and the evidence does not establish any increase in neck disability during service. At the January 1969 service separation examination, the spine and other musculoskeletal; and head, face, neck, and scalp examinations were normal. In the accompanying report of medical history, the Veteran denied having, or having ever had, any bone, joint, or other deformity, and the Veteran did not mention any neck symptoms at the time of separation. In making the above finding, the Board finds the Veteran's report of service incurrence to lack credibility. The Board notes that credibility can be detrimentally affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, a showing of interest, bias, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran's statements are internally inconsistent with the service medical records that clearly show that the Veteran sustained a whiplash injury to the neck prior to service, rather than during service. Moreover, in his statements, he has neglected to report or acknowledge the pre-service whiplash injury, and that is internally inconsistent with the current assertion that a whiplash injury occurred during service. Finally, and most persuasively, the copious post-service treatment records do not show any treatment for a neck disability, nor has the Veteran reported injuring his neck in service to post-service physicians. When reviewing the record, the Board finds that the competent, credible, and persuasive evidence weighs against the Veteran's statements of service incurrence. Rather, the competent and probative evidence demonstrates that the Veteran sustained a whiplash injury to the neck prior to service. There is no competent evidence of record that relates any current neck disability to service, or shows any current neck disability. Furthermore, the Board finds that the heavy preponderance of the evidence is against a finding that any preexisting neck disability increased in severity during service, as shown by the normal separation examination and the absence of any post-service evidence of treatment for any neck disability. Therefore, the evidence is against a finding of aggravation. Even if there were some increase in service, the Board finds clear and unmistakable evidence against aggravation as there is no evidence showing any treatment for any neck disability that would in any way substantiate the claim of aggravation. There is no competent evidence that supports a claim of increase of disability during service or of any current disability that is an aggravation of a preexisting whiplash injury. The Board finds an absence of an increase in severity during the pre-existing whiplash injury during service. Specifically, there is no indication of treatment for a neck disability in service, on service separation, or in the years following service separation. There is no medical evidence to support that assertion. Thus, because the evidence demonstrates that the Veteran's whiplash injury to the neck pre-existed service and was not aggravated beyond its natural progression by service, service connection for a neck disability is not warranted. Even if the neck disability were found to not preexist service, the evidence does not show any current neck disability that could be related to service. While the Veteran claims a quick stop in a vehicle led to a neck injury, there is no competent evidence of record relating any current neck disability to any event, injury, or disease during service. Accordingly, the Board finds that the preponderance of the evidence is against a finding that any current neck disability is related to service or that any preexisting neck disability increased in severity during service. The Board further finds that clear and unmistakable evidence is against a finding of aggravation of any preexisting neck disability as not treatment or competent evidence showing a current neck disability is of record. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Service connection for right ear hearing loss is denied. Service connection for PTSD is denied. Service connection for a neck disability is denied. REMAND A VA examination and opinion is necessary for the claims for service connection for a bilateral shoulder disability, a right elbow disability, and a right knee disability. The Veteran contends that he sustained an injury when he was moving a large safe down two flights of stairs and it slipped and caught him on the right elbow, shoulders, and right knee, causing pain and problems ever since. The service treatment records are negative for the described injury, and the service separation examination is negative for any musculoskeletal disability, symptoms, or problems. However, the post-service treatment records reference various previous injuries, to include that the Veteran's right knee cap was replaced in the mid-1970s, and that he had an old tendon injury of the left shoulder. The records also demonstrate that he practiced Taekwondo for many years, and that the left shoulder disability was attributed to that fact in April 2005. In light of the references in the treatment records, further examination is warranted. A new VA examination and opinion is also necessary with regard to the claim for service connection for a digestive disorder with a bleeding ulcer. In 2012, a VA examiner concluded that it was less likely than not that the Veteran's bleeding ulcer was related to the Veteran's report on service separation that he had "stomach trouble, gags after eating, almost subsided." However, the reason for that conclusion is unclear, as it appears that the examiner was relying only on the time period between service separation in 1969, and the diagnosis of an ulcer in 2005. The examiner did not address the notation in the post-service records that noted an "ancient history of peptic ulcer bleed with no residuals," and the Veteran's statements that he was diagnosed with a peptic ulcer in 1971. The examiner also stated that further questions should be directed to a GI specialist, and that recommendation should be followed on remand. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of any right knee, bilateral shoulder, and right elbow disabilities. The examiner must review the claims and should note that review in the report. The examiner is requested to provide the following opinions: (a) Diagnose any right knee, bilateral shoulder, or right elbow disability. (b) Is it at least as likely as not (50 percent probability or greater) that any current right knee, bilateral shoulder, or right elbow disability was caused or aggravated by service, to include a fall down two flights of stairs while lifting a heavy locker? The examiner should address the various post-service treatment records that reference an old tendon injury of the left shoulder and that the Veteran's right knee cap was removed in the mid-1970s. 2. Schedule the Veteran for a VA examination with a gastrointestinal specialist to determine the etiology of his digestive disability with ulcer bleed. The examiner must review the claims file and should note that review in the report. The examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that any current digestive disability with ulcer bleed was present in service, was caused by service, or had its onset in service, to include the notation on service separation that he had "stomach trouble, gags after eating, almost subsided;" the indication in the post-service records of an "ancient history of peptic ulcer bleed;" and the Veteran's statements that he was treated for an ulcer in 1971. 3. Then, readjudicate the claims for service connection for a digestive disorder, a bilateral shoulder disability, a right elbow disability, and a right knee disability. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response, then return the case to the Board. The appellant 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 that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs