Citation Nr: 1803699 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 17-03 540 ) DATE Advanced on the Docket ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI) with seizures. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and bipolar disorder. ORDER Service connection for TBI with seizures is denied. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and bipolar disorder is denied. FINDINGS OF FACT 1. A TBI with seizures did not have its clinical onset in service, and is not otherwise related to the Veteran's service. 2. An acquired psychiatric disorder, to include PTSD, depression, and bipolar disorder, is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI with seizures are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for an acquired psychiatric disability, including PTSD, depression, and bipolar disorder, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to February 2004. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017, the Veteran was sent a letter reminding him that he requested an optional hearing with a Veterans Law Judge (VLJ) from the Board in connection with his claims on appeal. The Veteran submitted two VA Form 9s. The first VA Form 9 indicates the Veteran's desire to have a Travel Board hearing. The second VA Form 9 declines an optional Board hearing. A March 2017 VA Form 8 indicates that a local Travel Board hearing was requested, but does not have a box checked to indicate whether it was held. The Veteran was asked to clarify whether he desired to have a hearing and if so, what type. The Veteran did not respond to the October 2017 hearing clarification letter within the allotted timeframe. Thus, the Board can proceed without scheduling the Veteran for a hearing. The Board has recharacterized the Veteran's claim for service connection for PTSD as a claim for service connection for an acquired psychiatric disorder, to include PTSD, depression, and bipolar disorder. See Clemons v. Shinseki, 23 Vet App 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). I. 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. § 1110; 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. A. PTSD Service connection for PTSD requires medical evidence diagnosing the condition 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). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 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. An example of such an event or circumstance is incoming artillery, rocket, or mortar fire. See id. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V). In this case, the Veteran has not met the first essential criterion for service connection for PTSD - a medical diagnosis of the disorder in accordance with the applicable diagnostic criteria. Post-service treatment records do not document a diagnosis of, or treatment for, PTSD. To the extent that the Veteran claims to have PTSD, the Board notes that while lay persons are competent to provide opinions on some medical issues, on the specific question of a DSM-V diagnosis of a psychiatric disorder, that question falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. A threshold requirement for granting service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran does not have a current diagnosis of PTSD, service connection for such a disorder is not warranted. B. Acquired Psychiatric Disorder (other than PTSD) and TBI with Seizures With respect to an acquired psychiatric disorder other than PTSD and a TBI with seizures, the Board acknowledges at the outset that there is question as to whether the Veteran has an acquired psychiatric disorder other than PTSD and TBI with seizures that preexisted service. 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 such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). The statute provides that the presumption of soundness applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Once the presumption of soundness attaches, the burden then falls on VA to rebut the presumption. This can only be done by showing by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Even when there is clear and unmistakable evidence of preexistence, the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See id. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. In this case, an October 2000 Report of Medical Examination for enlistment notes a normal head, face, neck, and scalp, neurologic, and psychiatric clinical evaluation. The examiner wrote a note pertaining to "#18 head, face, neck, and scalp," which stated "severe head injury and probable post traumatic." The examiner also wrote a note for "#41 neurologic" that in April 1995, the Veteran suffered a severe head injury that resulted in skull fractures and subdural hematoma due to a moped accident. It was also noted that a June 2001 neurology consult revealed a normal EEG and normal neurological examination. In view of the foregoing, the Board finds that no neurologic or psychiatric disability was noted upon the Veteran's entry into service. Although the Veteran had a pre-existing head injury, the Veteran's October 2000 enlistment examination revealed a normal neurologic clinical evaluation and the June 2001 neurology consult, one month prior to entry into service, revealed a normal neurological examination. In addition, no psychiatric disability was noted on the October 2000 enlistment examination and the Veteran had a normal psychiatric clinical evaluation. Thus, the presumption of soundness attaches with respect to both claims. The Board notes that the Veteran has been diagnosed during the course of the appeal with depression, bipolar disorder, and head injury/seizure disorder. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether these conditions are related to service. Service treatment records are silent as to any complaints of or treatment for any neurologic disabilities, to include any evidence of seizures, a head injury, or any psychiatric disabilities. Post-service, a November 2016 VA treatment record reflects that the Veteran "suffered from seizures since April 2016, although he had seizures probably much sooner than that." A December 2016 VA treatment record reflects that the Veteran's bipolar symptoms were related to head injury/seizure disorder. With regards to the Veteran's claim for a TBI with seizures, the Veteran asserts that he began having mild seizures prior to leaving service. He also reported that he would get in trouble for not remembering things he was asked to do and called a liar. He further reported that he was yelled at repeatedly for not following orders that he did not remember to do. Additionally, he related that he was late to duty due to having a possible seizure in his sleep and waking up in a fog or not on time. He also stated that he would not fully understand commands given or he misunderstood them. The Veteran also related having lashed out in anger at his peers and officers. With regards to the Veteran's acquired psychiatric claim, the Veteran asserts that he was told not to trust Muslims. He stated that he had to face Muslims during and after his time in the Army and that they would be near his car and/or property and he would be in fear that one would be strapped with a bomb. He stated that in service, he was made to check for bombs under and on vehicles when they would come in. The Veteran asserts that to this day, he cannot handle going into hospitals or being around any Muslim. He reported being constantly in fear of his vehicle being tampered with and checking his vehicle before getting inside. He also had memories of a sergeant yelling in his face when he could not understand commands and now deals with paranoia every day and takes pills for that and anger. While the evidence reflects diagnoses of depression, bipolar disorder, and head injury/seizure disorder, there is no competent evidence of a nexus between the Veteran's current disabilities and service. While the Veteran believes that his disabilities are related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion regarding the etiology of a psychiatric disability or of a traumatic brain injury with or without seizures. See Jandreau, 492 F.3d 1372, 1376-77. In this regard, the diagnosis and etiology of depression, bipolar disorder, and head injury/seizure disorder are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinions as to etiology of his claimed conditions are not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disabilities is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Thus, the Veteran's own opinions regarding the etiology of his current disabilities are not competent medical evidence. The Board acknowledges that the Veteran has not been afforded VA examinations with respect to his claims on appeal. However, VA examinations are not necessary as there is no competent evidence that indicates the claimed conditions are the result of disease or injury in service, other than the Veteran's lay assertions, which are insufficient to trigger VA's duty to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In sum, the preponderance of evidence is against a finding that the Veteran's current neurologic and psychiatric disorders are the result of an in-service injury or disease. There is no evidence related to a neurologic or psychiatric disability in service, and there is no probative evidence of nexus to service for the current disabilities. As the preponderance of evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the Veteran's service connection claims for TBI with seizures and an acquired psychiatric disability to include PTSD, depression, and bipolar disorder must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel Department of Veterans Affairs