Citation Nr: 1751258 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-34 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a hernia condition. 3. Entitlement to service connection for kidney stones. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Costello, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1977 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Following the hearing the record was held open for 60 days to allow the Veteran to submit additional evidence. The Board most recently previously remanded these claims in February 2017. The claims were remanded to afford the Veteran VA examinations. The Veteran was afforded VA examinations in March 2017. FINDINGS OF FACT 1. An acquired psychiatric disorder to include PTSD is not attributable to or related to service. 2. A hernia condition is not attributable to or related to service. 3. Kidney stones are not attributable to or related to service CONCLUSIONS OF LAW 1. An acquired psychiatric disorder to include PTSD was not incurred or aggravated in active service nor may a psychosis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). 2. A hernia condition was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 2. Kidney stones were not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, psychoses will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Psychiatric Disorder-Factual Background The Veteran contends service connection should be established for an acquired psychiatric disorder to include PTSD because of the trauma he suffered in a 1978 motor vehicle accident and because he witnessed a helicopter accident in 1978. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V); a link, established by medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304 (f). Unless PTSD is diagnosed in service and the in-service stressor is related to service or the in-service stressor is related to combat or to fear of hostile military or terrorist activity or to a prisoner-of-war experience or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304 (f). "Fear of hostile military or terrorist activities" means that a Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3). The service treatment records (STRs) do not reveal findings of any psychoses or any other diagnosed acquired psychiatric disorders. The Veteran's December 1976 entrance examination and June 1979 separation examination yielded normal findings for psychological conditions. However, in November 1978, the Veteran indicated that he had depression and excessive worry. Also, a January 1979 STR revealed that the Veteran had sleeplessness and developed a negative attitude toward the service. In November 1990, the Veteran sought treatment for depression at VA. His mother and father died in the past year and he had broken up with his girlfriend. He reported low self-esteem and frustration. He was unemployed, but taking some college courses. He was diagnosed with mental depression, given a low dose of antidepressant medication, and scheduled for psychological counseling. During a February 2003 VA appointment, the Veteran reported anxiety and depression. He was diagnosed with an adjustment disorder. In March 2003, the Veteran was diagnosed with dysthymia. In July 2010, the Veteran underwent an initial VA examination for PTSD. The VA examiner reviewed the Veteran's claims file. The Veteran's first psychiatric inpatient admission occurred in August 2009. He was admitted due to complaints of anxiety, depression, and physical pain. He was not involved in individual outpatient treatment and did not take psychotropic medication. While on active service, the Veteran was concerned that he could not remember second grade and stated that he developed a negative attitude toward the service. A month prior to this note, the Veteran was involved in a motor vehicle accident. He was grossly inebriated and received a sore right shoulder, sore right knee, and neck stiffness. The Veteran reported that he began drinking alcohol at eight years old and began using marijuana in high school. He reported anxiety since childhood. He reported sleepless nights to pain and racing thoughts. His symptoms included a lack of motivation and reported general anxiety. He was diagnosed with cannabis abuse, cocaine abuse, personality disorder not otherwise specified (NOS). The examiner found that the Veteran did not see his own role in his difficulties and consistently attributed his problems to the actions of others. The examiner opined that the Veteran's substance abuse was secondary to his personality disorder and that his personality disorder was not a result of his military service. No evidence was found to support a diagnosis of PTSD. In September 2012, the Veteran was afforded a Disability Benefits Questionnaire (DBQ) for PTSD. The VA examiner reviewed the Veteran's claims file. The Veteran was not diagnosed with PTSD as he did not meet the criteria for PTSD, but was diagnosed with anxiety NOS, substance abuse, and unspecified personality disorder. There was no evidence of mental health issues while the Veteran served on active service, though he received relaxation instruction after a motor vehicle accident in January 1979. The Veteran first received mental health treatment in 2007. He reported extensive marijuana use. The examiner opined that it is less likely than not that the car accident that occurred while the Veteran was in the military significantly attributed to his mental health diagnoses. During his May 2014 hearing, the Veteran testified that he witnessed a helicopter crash that killed the crew onboard. He also testified that his motor vehicle accident in December 1978 was traumatic. In September 2015, the Veteran was afforded another DBQ for PTSD. The VA examiner reviewed the Veteran's claims file. The Veteran was not diagnosed with PTSD, but was diagnosed with bipolar 2 disorders and cannabis use disorder, mild. The examiner opined that both of the Veteran's diagnoses were less likely than not attributable to his military service as his STRs did not support his current diagnoses. The examiner considered the reported helicopter accident and motor vehicle accident. The examiner found that the Veteran's impairments from his disorders were attributable to both his chronic cannabis use and the symptoms of his bipolar disorder. As the symptoms overlap, it was impossible to differentiate which portion of impairment is attributable to each. He reported that many of his friends died when he was nine years old and that this still affected him today. He reported periods of racing thoughts, difficulty concentrating, and a reduced need for sleep. An October 2015, the Joint Services Records Research Center (JSRRC) stated that they were unable to locate the Veteran's unit records, but that documentation was found of a helicopter crash at the base the Veteran was stationed in 1978. JSRRC was unable was unable to verify that this crash was the one the Veteran witnessed, nor could they verify that the Veteran investigated any crashes. In a March 2017 addendum opinion, the VA examiner opined that the Veteran's bipolar disorder was less likely than not related to the Veteran's military service as in-service complaints of depression, excessive worry, a negative attitude, and sleeplessness are not sufficient to support a diagnosis of bipolar 2 disorder by history. The VA examiner reviewed the Veteran's claims file. Hernia Condition-Factual Background The Veteran contends service connection should be established for a hernia condition because of the trauma he suffered in a 1978 motor vehicle accident. The STRs do not reveal findings of a hernia. The Veteran's December 1976 entrance examination and June 1979 separation examination yielded normal findings. A February 2001 VA treatment note revealed that the Veteran reported that he had a herniated diaphragm from a car accident. A 2003 esophagogastroduodenoscopy revealed that the Veteran had a hiatal hernia. During an August 2013 VA appointment, the Veteran reported that he had a herniated sternum that required a steroid injection. During his May 2014 hearing, the Veteran testified that he was compressed in the chest area during a December 1978 motor vehicle accident. He noticed a protrusion at that time and has experienced aching pain since. He believed that the motor vehicle accident caused his hernia as he had not sustained any other abdominal injuries since the accident. In September 2015, the Veteran underwent a DBQ for hernias. The VA examiner reviewed the Veteran's claims file. The Veteran reported that he first noticed an abdominal protrusion about two years after his active duty service, but he did not mention it to a health care provider until about 2010. During a September 2010 private physician's appointment, the Veteran reported that he was in a motor vehicle accident several years earlier and that he had chronic pain in his chest since. The examiner noted that the midline upper abdomen protrusion is his xiphoid process, and not a hernia condition. The Veteran referred to the xiphoid process as a hernia. On examination, no hernia was detected. The examiner found that the Veteran has never had an abdominal or ventral hernia either during or after active military service. The Veteran's chest wall and abdominal examinations after the in-service motor vehicle accident were all normal. Also, the Veteran never complained of his xiphoid process or hernia symptoms during multiple follow-up visits during active military service. In a March 2017 addendum opinion, the VA examiner opined that the Veteran's hiatal hernia, or residuals thereof, is less likely than not related to active duty service, to include a car accident during service in December 1978. The VA examiner reviewed the Veteran's claims file. The examiner rationed that the Veteran had a normal abdominal and chest examination after the December 1978 accident. There was no abdominal tenderness or distension. He was diagnosed with a bruised right shoulder. The Veteran never complained of hernia symptoms during numerous follow-up appointments. The Veteran's exit examination was normal. During a June 1999 psychological evaluation, the Veteran stated that he had a history of a herniated diaphragm, yet he was not taking medication at the time. The Veteran was diagnosed with hiatal hernia in 2003. There was no mention of a herniated diaphragm until a psychotherapy note in June 1999, more than twenty years after the Veteran's military service. He was not diagnosed with reflux until 2001 and the Veteran's hiatal hernia was not diagnosed until 2003. The examiner was unable to find any correlation between the Veteran's 1978 motor vehicle accident /active military service and his subsequent development of a hiatal hernia, or residuals thereof, initially noted more than twenty years later. Kidney Stones-Factual Background The Veteran contends service connection should be established for kidney stones because of the trauma he suffered in a 1978 motor vehicle accident. The STRs do not reveal findings of kidney stones. The Veteran's December 1976 entrance examination and June 1979 separation examination yielded findings of a normal genitourinary system. In August 1983, the Veteran reported left flank pain and was found to have a kidney stone. His past history was unremarkable for kidney stones. The Veteran's father had recurrent kidney stones. The VA physicians determined that the stone would pass on its own. VA treatment records noted that the Veteran was treated almost yearly for kidney stones from 1983 to 1988. During his May 2014 hearing, the Veteran testified that he had flank pain while in service, but he had his first kidney stone years later after his active duty service. In September 2015, the Veteran underwent a DBQ for kidney conditions. The VA examiner reviewed the Veteran's claims file. The Veteran was diagnosed with diabetic neuropathy and kidney stones onset in 1983. The Veteran's STRs were silent for kidney stones. The Veteran was hospitalized in August 1983 for left flank pain. A kidney stone was discovered during his hospitalization in 1983. The Veteran passed many kidney stones since 1983. He denied having any symptoms related to his history of kidney stones. The examiner opined that the Veteran's kidney stones were less likely as not incurred in or caused by military service as his STRs were silent of kidney stones. Also, the Veteran first reported having kidney stones more than four years after he separated from active service. In a March 2017 addendum opinion, the VA examiner opined that the Veteran's kidney stones are less likely than not related to active military service, to include a car accident in December 1978, as all active service records indicated a normal genitourinary system and the Veteran's STRs are silent for kidney stones. The VA examiner reviewed the Veteran's claims file. An examination after the accident revealed a normal chest and abdominal cavity with no tenderness. The Veteran developed left flank pain and passed a kidney stone in 1983, four years after he separated from service. In June 1983, the Veteran denied any prior history of kidney stones. Medical records from 1987 and 1989 indicated that the Veteran had a history of kidney stones dating back to 1981 without any supporting history. Medical literature does not support vehicle accident injuries as a cause of kidney stones. An examination after the accident revealed a normal chest and abdominal cavity with no tenderness. Analysis In this case, the VA examiners were aware of the Veteran's medical history, provided fully articulated opinions, and also furnished a reasoned analysis in providing the negative opinions as outlined above. The Board therefore attaches significant probative value to these opinions, and the most probative value in this case, as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board has considered the Veteran's own opinion that his acquired psychiatric disorder, kidney stones, and hernia were attributable to trauma he suffered in a 1978 motor vehicle accident. Also, the Board considered the Veteran's acquired psychiatric disorder being attributable to a helicopter accident. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature". Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. Therefore, a medical expert opinion would be more probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiners, medical professionals who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The most probative evidence establishes that an acquired psychiatric disorder, kidney stones, and hernia are not related to service. This evidence also indicates that the Veteran does not meet the criteria for a diagnosis of PTSD. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. Entitlement to service connection for a hernia condition is denied. Entitlement to service connection for kidney stones is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs