Citation Nr: 1801829 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-15 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for an ear disability. 4. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Michael J. Kelley, Esq. ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1964 to April 1966. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 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) (2012). FINDINGS OF FACTS 1. The Veteran does not have a current diagnosis for a back disability. 2. The Veteran does not have a current diagnosis for an eye disability. 3. The Veteran does not have a current diagnosis for an ear disability. 4. The Veteran does not have a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. A back disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. An eye disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. An ear disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The Board finds that a VA examination is not necessary in order to address the Veteran's claimed disabilities. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). As the Board will discuss below, service treatment records (STRs) do not reflect problems related to a back disability, eye disability, ear disability or PTSD in service. Moreover, there is no credible lay or medical evidence which relates these claimed disabilities to service. Absent evidence that indicates that the Veteran has a current claimed disability related to an injury or symptoms in service, the Board finds that an additional VA examination or opinion is not necessary for disposition of the claims. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to these issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) 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 disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482 (2000); Wilson v. Derwinski, 2 Vet. App. 614 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A. Back Disability The Veteran contends that service connection is warranted for a back disability. The Veteran's STRs do not show any complaints, treatment, or diagnosis for a back disability. In June 2016 during an intake consultation at the Boston Out Patient Clinic (OPC), the Veteran reported having been stoned and speared in the back during service in Ethiopia and Somalia when asked if he had served in an active combat area. This is the only reference to any back disability in the Veteran's medical record. As such, the Veteran does not have a current diagnosis for a back disability. Thus, the Board finds that the weight of the evidence shows that service connection for a back disability during active service is not warranted, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B. Eye Disability The Veteran contends that service connection is warranted for an eye disability. The Veteran's STRs do not show any complaints, treatment, or diagnosis for an eye disability. The Veteran's March 1966 separation exam shows the Veteran had a normal field of vision and his eye sight was 20/20 with his corrective glasses. In October 2015 during a psychological evaluation, the Veteran reported a blank spot in his eye after being hit with shrapnel during service. The Veteran repeated this claim during a mental health assessment in February 2016, alleging a blind spot in his left from shrapnel. He reported no change in vision and no eye pain in a mental health consultation in June 2016. Despite these allegations, there is no treatment or diagnosis of an eye injury in any medical record. Thus, the Board finds that the weight of the evidence shows that service connection for an eye disability during active service is not warranted, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C. Ear Disability With respect to these Veteran's claim for service connection for an ear disability, there is no evidence that the Veteran has any current disability. The Veteran has submitted no evidence to show the existence of any such disability. In his May 2016 application for this disability, the Veteran did not provide any statements with regard to the disability. Furthermore, service treatment records, as well as post-service treatment records, are negative for any findings of a disability. The Veteran, as a lay person, is competent to note what he experiences. Layno v. Brown, 6 Vet. App. at 470 (1994). However, the Veteran himself has provided no statements with regard to the claims. While the Veteran is competent to report his symptoms, the evidence, including his own lack of statements, demonstrates that he does not have these disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this circumstance, the Board gives more weight to the evidence that is negative for any findings of a current disability. Since the evidence does not show that the Veteran has an ear disability, the Board finds that the Veteran is not entitled to service connection. D. PTSD Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board acknowledges that 38 C.F.R. § 3.304(f)(2) provides that "if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." In addition, 38 C.F.R. § 3.304(f)(3) provides that if a claimed PTSD stressor is related to a veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. "'Fear and hostile military or terrorist activity' means 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, such as from ... incoming artillery, rocket, or mortar fire, ... 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 Veteran's military personnel file notes that the Veteran spent the majority of his time in service stationed in Ethiopia. His Form DD-214 notes his MOS as a cook. A December 1965 letter from Army Headquarters indicates that the Veteran was personnel with access to special intelligence. In a May 2014 mental health assessment, the Veteran described traumatic events in Ethiopia during service, including being attacked by local Ethiopian tribesmen with spears and stones, being attacked by guerrillas with improvised explosive devices (IEDs) while riding in an ambulance in which 5 others died, and his roommate attempting to commit suicide. As stated earlier, the Veteran reported being stabbed in the back with a spear and harmed by shrapnel to his left eye. However, with regard to the combat-related stressors, the Veteran's STRs do not contain any entries regarding complaints, treatment, or diagnoses for any back or eye injuries during service. During his discharge examination in March 1966, the Veteran was evaluated as normal with no medical issues noted. A subsequent medical history report in October 1978 from his time in the Army Reserves also found the Veteran in good health and no medical issues. The Veteran's VA treatment records contain assessments and reports from the Veteran that are inconsistent with his STRs. The Veteran was put in a detox program at the Brockton VA Medical Center (VAMC) in August 2015 following a 50 year history of alcohol use disorder. The Veteran reported intermittent nightmares, being startled easily, and unable to fall back asleep since returning from service in Ethiopia where he experienced life threatening trauma. The examiner noted his mood and anxiety appeared to stabilize as detox progressed and started the Veteran on Prazosin for chronic sleep disturbances. Based on his DSM-5 examination, the Veteran was diagnosed with alcohol use disorder, rule out PTSD. During an assessment for outpatient care in October 2015, the Veteran reported he seeking service connection for PTSD based on his symptoms of flashbacks, physical pain, and a blank spot in his eye from shrapnel. The Veteran reported PTSD based on battle trauma which included having grenades thrown at him, as well as spears and stones, by Ethiopians. In February 2016, the Veteran was assessed by a social worker at the Boston VAMC and found the Veteran does not have PTSD. The social worker found the Veteran needed psychiatric treatment for substance abuse. The Veteran denied substance abuse, stating he was required to go to detox in order to qualify for a support program, but was not actually drinking or using any drugs at the time. In April 2016, the Veteran was interviewed by a social worker at the Boston VAMC walk-in clinic and claimed to be 100 percent service connected for PTSD. In June 2016, the Veteran was assessed at the Brockton VAMC and reported drinking to handle stressful or overwhelming situations, not currently bothered by a past traumatic event, never being diagnosed with PTSD. The Veteran was given the DSM-5 examination again, and the Veteran was diagnosed with alcohol use disorder, rule out PTSD, noting that a further assessment for PTSD was warranted with sobriety. A subsequent alcohol withdrawal assessment found the Veteran sober and did not identify any mental health issues. There is no indication in the Veteran's treatment records that his alleged stressors are adequate to support a diagnosis for PTSD. The Veteran has been administered the DSM-5 examination twice, and both times he failed to meet the criteria for PTSD. As such, there is no diagnosis for PTSD in the medical records. The only evidence of a relationship between an acquired psychiatric disorder and service are the Veteran's lay statements. The Veteran does not possess the medical knowledge to diagnose an acquired psychiatric disorder or attribute an acquired psychiatric disorder to his military service. Therefore, the Veteran's contention that his PTSD is related to service is not competent and therefore not probative. Accordingly, for the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be denied. ORDER Service connection for a back disability is denied. Service connection for an eye disability is denied. Service connection for an ear disability is denied. Service connection for PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs