Citation Nr: 1801011 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-00 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a bilateral eye condition. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for left great toe condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1990 to December 1994. These matters come before the Board of Veterans' Appeal (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board has recharacterized the Veteran's claim for service connection for PTSD to more broadly reflect all potential current diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Pursuant to his request, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge in October 2017. However, the Veteran failed to appear at the scheduled time and location. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. 20.702(d) (2017). As no good cause has been alleged, the request for a hearing is considered withdrawn. The issue of entitlement to service connection for a left great toe condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's bilateral eye condition is a congenital defect. 2. The Veteran does not have a current diagnosis of a psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral eye condition are not met. 38 U.S.C. §§ 1110 , 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 4.9 (2017). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, are not met. 38 U.S.C. §§ 1110 , 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has satisfied its duties under the Veterans Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. § 3.102, 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated September 2009 and December 2009 informing the Veteran of the evidence generally needed to support his claim. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. §3.159. VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, along with private medical records. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded an in-person psychiatric VA examination in April 2017. The VA examiner provided clear explanations in support of the opinion and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Generally, establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also available for a preexisting condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Under VA regulations, every person employed in the active military, naval, or air service 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 such service. 38 U.S.C. §§ 1111, 1137 (2012). Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. However, aggravation may not be conceded where, on the basis of all of the evidence of record, the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. See 38 C.F.R. 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Defects are typically static conditions which are incapable of improvement or deterioration. VAOPGCPREC 67-90. In contrast, a disease refers to a condition considered capable of improving or deteriorating. VAOPGCPREC 67-90. However, if the defect was aggravated such that a superimposed disease or injury occurred during service, service connection may be established for the resultant disability. VAOPGCPREC 82-90. 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 evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39 - 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding 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). In regards to the competency of lay evidence, 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. See 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, as symptoms require only personal knowledge of what is observed through the use of his senses, not medical expertise. See Layno, 6 Vet. App. At 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. See Barr, 21 Vet. App. at 307 (2007). 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. See Jandreau, 492 F.3d at 1377. The VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Bilateral Eye Condition In June 1974, the Veteran was diagnosed with congenital esotropia of the left eye, and underwent strabismus surgery as a child. The Veteran received bilateral medial rectus muscle recessions, and a left lateral rectus resection. On the Veteran's entrance examination report from July 1990, he was noted to have normal pupils and eyes. His vision at that time was 20/20 for the right eye, and 20/50 for the left eye. An overseas screening examination report from July 1991 indicated the Veteran had eye trouble but was in good present health. However, in December 1991, the Veteran visited the Ophthalmology Clinic for a strabismus examination. He was diagnosed with hypotropia and in January 1992 underwent lateral rectus recession of both eyes. During the weeks following the operation, service treatment notes indicate the Veteran's vision was 20/20, there was good cosmetic result, and the Veteran was doing well. It was noted on the Veteran's separation examination report that his vision was 20/40. In a December 2009 statement in support of claim, the Veteran stated his eyes are permanently bloodshot. Additionally, he stated that while the eye surgery during service initially helped, his eyes have regressed over the years. The preponderance of the evidence is against the claim. Strabismus, alternately known as esotropia and hypotropia, has been defined as a deviation of the eye which the patient cannot overcome. "Strabismus," Dorland's Medical Dictionary for Health Consumers (2007). https://medical-dictionary.thefreedictionary.com/strabismus (last viewed December 12, 2017). Though the Veteran has a current bilateral eye condition, the record shows he was diagnosed with congenital esotropia as a child, and was later diagnosed with hypotropia during service. Both of these conditions constitute a congenital defect for VA purposes, and are not entitled to service connection. Further, the Veteran left service with 20/40 vision and stated that the eye surgery he received during service was helpful. Other than reporting that his eyes have regressed over the years, the Veteran has not sought treatment for his eyes since his discharge from service in 1994. The record fails to persuasively show that the Veteran's congenital defect was subject to a superimposed disease or injury in service. There is no indication in the record that the Veteran has an eye disease or any other eye condition that would entitle him to service connection. Psychiatric Disorder There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance 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. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. The Veteran contends that he has an acquired psychiatric disorder, including PTSD and depression primarily due to his experiences in Somalia. Service treatment records contain no documentation of complaints of or treatment for an acquired psychiatric disorder. The Veteran's entrance and separation examinations, dated July 1990 and October 1994, respectively, reflect that his psychiatric evaluations were normal. In October 2009 and June 2010, the Veteran submitted statements in support of his PTSD claim describing stressor events during service. The Veteran stated that a close friend and fellow soldier stationed in Puerto Rico was killed by another soldier. The Veteran stated he was not present when this incident occurred. Additionally, the Veteran stated that while stationed in Somalia, he was involved in hostile fire, including mortar attacks; witnessed children being pushed into concertina wire and subsequently being beaten by the local police; witnessed the amputation of a civilian's hand after being caught stealing; and having to handle the decomposed body of a civilian. The Veteran's Commanding Officer provided an excerpt from a Command Chronology report from January 1994 through June 1994 that corroborates the Veteran's reports of being exposed to hostile fire and mortar attacks in Somalia. The Veteran also stated he cannot be around large crowds, it is difficult to trust others, he is impatient with his children, and he sees images of events he witnessed in Somalia in his mind every day. In December 2009, the Veteran's private counselor submitted a letter stating the Veteran was seen on six occasions between July 2009 and October 2009. The letter states the Veteran was diagnosed with Adjustment Disorder with Anxiety Adjustment, Panic Disorder without Agoraphobia Anxiety, and Partner Relational Problems. There are no other treatment records regarding the Veteran's mental health in the file to provide insight into the Veteran's mental health that led to these diagnoses. Further, the letter does not indicate that there is a connection between the Veteran's current psychiatric condition and his time in service. The April 2017 VA PTSD examination report reflects that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-5. The examiner stated the Veteran does not meet the criteria for PTSD or any other mental health disorder. The Veteran reported the stressors mentioned above regarding the death of his friend in Puerto Rico and being subjected to attacks in Somalia. The examiner found the stressor concerning the death of the Veteran's friend was not adequate to support a PTSD diagnosis, but the Veteran's experience in Somalia was an adequate stressor to support a diagnosis of PTSD, as it was related to the Veteran's fear of hostile military or terrorist activity. However, the Veteran's stressor did not meet the overall clinical criteria for a diagnosis of PTSD. The examiner considered the letter in the claims file from the Veteran's private counselor, who treated the Veteran from July to October 2009 and diagnosed him with an adjustment disorder. However, the Veteran reported to the examiner that the counseling was related to mandated anger management resulting from spanking his daughter, and no other mental health services were engaged throughout the Veteran's lifespan. The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service events. A preponderance of the evidence is against a finding that PTSD, or any other psychiatric disorder, was caused by service. The Veteran's self-reports regarding his claimed psychiatric condition are not sufficient alone to establish a diagnosis of PTSD. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014). No competent medical provider has opined that the Veteran has a psychiatric disorder that was caused by any in-service injury or event, nor has a competent medical provider stated that the Veteran has had a psychiatric disorder continuously since service. Thus, service connection is not warranted. As the preponderance of the evidence is against the service connection claims for a psychiatric disorder and bilateral eye condition, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a bilateral eye condition is denied. Service connection for a psychiatric disorder, to include PTSD, is denied. REMAND The Board has determined that additional development of the service connection claim for a left great toe condition is necessary, and the claim is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify any relevant medical records related to his left great toe. Subsequently, obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to assist in determining the nature and etiology of his left great toe condition. The record must be made available to and reviewed by the examiner prior to the examination. All indicated tests and studies should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran's documented medical history and assertions. Based upon a review of the entire record and history provided by the Veteran, the examiner should provide an opinion as to the following: Whether the Veteran's current left great toe condition is etiologically related to his military service. The examiner must comment on and discuss the lay contentions made in the record and provide a thorough explanation for all opinions rendered. In rendering the above opinion, the examiner must review and discuss the record. In addition to any records that are generated as a result of this remand, the VA examiner's attention is drawn to the following: * Service treatment records from 1992 to 1994 that indicate the Veteran had recurring left great toe ingrown toenail that was removed twice and infected on one occasion. * December 2009 statement from the Veteran indicating his toe nail is painful and discolored * October 2010 private treatment record noting the left great toe nail was black A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing all indicated development, readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 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). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs