Citation Nr: 1756786 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 13-12 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for right shoulder disability. 4. Entitlement to service connection for left shoulder disability. 5. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The case was later transferred to the VA RO in Reno, Nevada. In June 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a hearing convened at the Board in Washington, D.C. A transcript of the hearing is included in the record. The record consists entirely of electronic claims files and has been reviewed. In the decision below, the Board will dismiss the service connection claim for TBI and will deny the service connection claim for psychiatric disability. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). In July 2017, the Veteran filed a notice of disagreement (NOD) against a rating decision issued in August 2016 addressing claims for increased rating for migraines, tremors, arm numbness, and abdominal pain, and a claim for a total disability rating based on individual unemployability. The AOJ has not responded with a Statement of the Case (SOC). Nevertheless, as VA has acknowledged receipt of the NOD, a remand of the issue pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is not necessary. FINDINGS OF FACT 1. On June 19, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal regarding service connection for TBI is requested. 2. The record does not contain medical evidence indicating that, since the Veteran filed his service connection claim in March 2009, he has been diagnosed with a psychiatric disability other than insomnia. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of the appeal regarding service connection for TBI have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. A psychiatric disability other than insomnia was not incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, during his June 2017 Board hearing, withdrew from appellate consideration the service connection claim for TBI. Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the issue and it will be dismissed below. II. Veterans Claims Assistance Act of 2000 VA has a duty to notify and to assist the Veteran in the development of his claims. See 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. Neither the Veteran nor his representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's medical records, to include service treatment records (STRs) and VA and private treatment records, have been obtained. Moreover, the Veteran underwent VA examination during the appeal period, the report of which is adequate to address the claim decided below. VA afforded the Veteran the opportunity to give testimony before the Board in his own hearing, which he did in June 2017. The VLJ who conducts a hearing must fulfill two duties under 38 C.F.R. § 3.103 (c)(2). These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In the hearing, the VLJ noted the appellate issue decided herein and ensured clarification regarding the evidence that would support the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Board finds that further action is unnecessary under 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced as a result of the Board's adjudication of the issue below. II. Service Connection The Veteran claims that he incurred posttraumatic stress disorder, depression, and anxiety during service, and as the result of service-connected disabilities. In assessing his claim, the Board will consider any acquired psychiatric disorder diagnosed during the appeal period. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disorders such as psychoses are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a)). Service connection may also 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the Veteran asserts that he incurred PTSD while serving in Southwest Asia in the early 1990s during the Persian Gulf War. He also asserts that he developed depression and anxiety as the result of service-connected disability that arose out of that service. The record establishes that the Veteran served in Southwest Asia between January and April 1991. The record also establishes that he has been service-connected for insomnia, gastrointestinal disability, and for multiple symptoms due to undiagnosed illness such as migraines, tremors, insomnia, chest pains, vein disorders, and neurological symptoms in his arms. A service connection finding is unwarranted here, however, because the evidence does not satisfy the first Shedden element - i.e., the evidence does not indicate the existence of a present psychiatric disability other than the already service-connected insomnia. The medical evidence addressing the Veteran's psychiatric state since his service connection claim in March 2009 consist of VA and private treatment records and a VA compensation examination report (completed by a psychiatrist) dated in August 2016. Neither the VA nor the private treatment records indicate a diagnosis for psychiatric disability other than insomnia. Rather, the VA treatment records - dated between 2010 and 2016 - repeatedly indicate the absence of psychiatric disability (e.g., multiple negative depression screenings). Further, the August 2016 VA examiner found the Veteran without any mental problems other than insomnia, which has been service connected. This examiner indicated a review of the claims file, and noted that an interview of the Veteran and a personal examination of the Veteran were both conducted. As the report is based on the evidence of record, and is explained, the report and its findings are of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Veteran's assertion that he has experienced psychiatric illness since discharge from service is of probative value as well. As a layperson, he is competent to report observable matters such as mental distress. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, on the issues of diagnosis and etiology, the medical evidence is more credible. The development of a psychiatric problem is an internal pathology beyond the Veteran's capacity to observe. It is a complex question of etiology which requires the determination of a medical professional. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The lay evidence on this question is medically insignificant when compared with the findings by the neutral and informed August 2016 VA examiner. Indeed, the lack of medical evidence of psychiatric disability since the claim to service connection in March 2009 (and since service discharge in May 1992) indicates that any in-service distress, or any distress related to service-connected disability, has not produced a chronic psychiatric disability. Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). In the absence of a disability, compensation may not be awarded. In the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, we use the definition of disability as noted in Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991) (a disability is an inability to pursue an occupation because of physical or mental impairment). Accordingly, a service connection finding for psychiatric disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As the preponderance of the evidence is against the claim to service connection, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER The appeal regarding service connection for TBI is dismissed. Service connection for acquired psychiatric disability is denied. REMAND A remand is warranted for medical inquiry into the service connection claims for shoulder disability and hearing loss disability. The Veteran has not undergone VA examination into his claim regarding hearing loss. An examination should be provided to him based on his assertions that he experiences diminished hearing acuity and experienced acoustic trauma during service in Southwest Asia. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). He did undergo VA examination into his claim regarding bilateral shoulder disability in August 2016. The report of the examination is not adequate, however, because its opinion did not adequately address the issue of service connection here. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any outstanding VA treatment records, the most recent of which are dated in June 2016. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of any hearing loss disability. The examiner should review the claims folder, and then respond to the following questions. (a) Does the Veteran have a hearing loss disability under 38 C.F.R. § 3.385? (b) If so, is it at least as likely as not (i.e., probability of 50 percent or greater) that any hearing loss disability is related to a disease, event, or injury during service? In answering (b), please consider and discuss the Veteran's lay assertions that acoustic trauma he experienced during service, and particularly in Southwest Asia during the Persian Gulf War, resulted in hearing loss. Please accept as true that the Veteran served in proximity to loud noises during service. 3. Schedule the Veteran for an examination to determine the nature and etiology of any shoulder disability. The examiner should review the claims folder, and then respond to the following questions. (a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the bilateral shoulder disability noted in the August 2016 VA report (tendinosis) is related to a disease, event, or injury during service? In answering (a), please consider and discuss the July 1988 STR noting shoulder injury. Please also discuss the August 1991 reports of medical examination and history which are negative for current or past shoulder problems. (b) If one shoulder disability is determined to be service connected, is it at least as likely as not that the other shoulder disability is due to or caused by service-connected shoulder disability? (c) If the response to (b) is negative, is it at least as likely as not that the other shoulder disability has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by the service-connected shoulder disability? If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. In answering (b) or (c), please consider and discuss the Veteran's June 2017 Board testimony, during which he claims that a right shoulder disability caused left shoulder disability. Please explain in detail any opinion provided. 4. After the completion of any action deemed appropriate in addition to that requested above, the claims should be readjudicated. All evidence received since the August 2016 Supplemental SOC (SSOC) should be considered. If any benefit sought remains denied, the Veteran and his representative should be provided another SSOC. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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 (West 2012). ______________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs