Citation Nr: 18139923 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-18 301 DATE: October 1, 2018 ORDER Entitlement to service connection for a left ankle condition is denied. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder, is denied. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the Veteran’s left ankle condition was incurred in service or is otherwise attributable to his service; instead, the evidence of record overwhelmingly suggests that his left ankle condition is attributable to a post-service gunshot wound to his left foot. 2. The preponderance of the competent and credible evidence of record is against a determination that the Veteran’s currently diagnosed acquired psychiatric disorder was incurred in service or is otherwise attributable to service, to include as due to the stressor reported by the Veteran that has not been corroborated. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ankle condition have not been met. 38 U.S.C. §§ 1131, 1112, 1113, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to July 1994. The Board notes that the Veteran in his original claim dated in May 2011 submitted a claim of service connection for an ankle sprain. The RO proceeded to adjudicate this claim as one for a left ankle condition. However, the Veteran in various correspondences has informed VA that he intended to file a claim for service connection for a right ankle sprain in May 2011. As such a claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Service Connection 1. Entitlement to service connection for a left ankle condition is denied As discussed above, the Veteran has clarified that he intended to file a claim for a right ankle sprain; however, the RO proceeded with an adjudication of a left ankle service connection claim, and the Board must therefore evaluate its decision. On that note, the Board acknowledges that the Veteran has already conceded that his left ankle was injured due to a gunshot wound he suffered in 2005. Therefore, the question for the Board is whether the Veteran has a left ankle condition that manifested in service or is separately attributable to an in-service injury, event, or disease independent of the post-service gunshot wound in 2005. The Board concludes that, while the Veteran has a clear diagnosis of left ankle traumatic arthritis, the preponderance of the evidence is against a finding that the left ankle traumatic arthritis began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of the Veteran’s service treatment records does not reveal any complaints, findings, treatment, or diagnoses relating to symptoms of a left ankle condition, although there are records documenting the Veteran’s treatment for a right ankle sprain. Specifically, an October 1992 outpatient record shows that the Veteran injured his right ankle playing basketball; however, no mention was made on that record or any subsequent treatment records regarding any symptoms of a left ankle condition. The Veteran’s July 1994 separation examination did not document any abnormalities regarding the Veteran’s lower extremities, and the Veteran did not report experiencing any left ankle pain on the accompanying July 1994 Report of Medical History. Accordingly, service connection for a left ankle condition on a direct basis pursuant to 38 C.F.R. § 3.303(a) is denied. VA medical records show that the Veteran developed left ankle osteophytes following a gunshot wound in 2005 and underwent resection surgery in 2010 to help alleviate his left ankle pain. Records through to April 2013 show continued treatment for left ankle pain attributed to the 2005 gunshot wound. The Veteran was afforded a VA examination in April 2013 to evaluate the nature and etiology of his left ankle condition. He reported that he had been experiencing increasing left ankle pain ever since the 2005 gunshot wound. After confirming a diagnosis of left ankle traumatic arthritis, the examiner opined that it was less likely than not that the left ankle condition was attributable to service. In support thereof, the examiner highlighted the fact that the Veteran had no complaints or symptoms of a left ankle condition in service, and further noted that the Veteran did not begin to seek treatment for left ankle traumatic arthritis until after the 2005 gunshot wound to his left foot. The examiner concluded that the left ankle condition was attributable solely to the 2005 gunshot wound. This opinion is highly probative as it is based on a thorough review of the record and the Veteran’s medical history. Sklar v. Brown, 5 Vet. App. 140 (1993) The Veteran has never asserted that he injured his left ankle in service, and has instead repeatedly stated that he is not seeking service connection for a left ankle condition; as such, the Board need not consider his lay contentions in evaluating whether service connection is warranted for the condition. On that note, the Board finds that the preponderance of the evidence is against a determination that the Veteran is entitled to service connection for a left ankle condition. As the April 2013 examiner concluded, the evidence overwhelmingly supports a finding that the Veteran’s current symptoms of a left ankle condition are attributable solely to the post-service gunshot wound. The Veteran has submitted no objective medical evidence in support of his claim, and indeed has essentially conceded that his left ankle condition is due to the post-service gunshot wound. Therefore, in light of the highly probative April 2013 VA examiner’s opinion, the Board finds that no medical nexus exists between the Veteran’s left ankle condition and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As the preponderance of the evidence is against the Veteran’s claim of service connection for a left ankle condition, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder The Veteran contends that he developed an acquired psychiatric disorder (claimed as PTSD) while in service following an incident where he witnessed a fellow servicemember assaulted by a superior officer. He acknowledges that he did not report the incident while in service but asserts that he began drinking alcohol and experiencing significant anger and trust issues after witnessing this event. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Specific to claims for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology, and the claimed in-service stressor. 38 C.F.R. 3.304(f). Concerning the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, VA regulation sets forth exceptions in which a claimant’s lay testimony, alone, may establish the occurrence of the stressor. 38 C.F.R. 3.304(f). These include when PTSD is diagnosed during service or based on stressors related to combat service, stressors related to being a prisoner of war, and, under certain circumstances, stressors related to “fear of hostile military or terrorist activity.” Id. A review of service treatment records does not reflect that the Veteran was ever diagnosed with a psychiatric disorder or sought treatment for any symptomatology attributable to a psychiatric disorder during service. The Veteran’s July 1994 separation examination did not document any abnormalities, and the Veteran did not report experiencing any psychiatric symptomatology or depression on the accompanying July 1994 Report of Medical History. The Veteran in statements dated in June 2011 and February 2013 described an incident in which he witnessed a fellow servicemember assaulted by his superior officer. See Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (dated June 17, 2011); see also Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder Secondary to Personal Trauma (dated February 5, 2013). He contended that he began to manifest symptoms of depression and anger following his witnessing of this event in service, and that he has continued to experience these symptoms ever since. The RO made a formal request in a March 2013 correspondence to the Joint Services Records Research Center (JSRRC) in an attempt to confirm that the event detailed by the Veteran actually occurred. This request included the names of the fellow servicemember and the superior officer in question. In an April 2013 correspondence, the JSRRC notified the RO that it could find no evidence in the available military records that this incident described by the Veteran had ever occurred. The Board acknowledges that the Veteran is competent to report the stressor incident that he believes resulted in his development of an acquired psychiatric disorder. However, the stressor detailed by the Veteran does not fall under one of the categories outlined in 38 C.F.R. 3.304(f) allowing for lay testimony alone to establish the occurrence of a stressor. The Board must therefore rely on the objective evidence available in the record, which does not provide any support for the Veteran’s assertion that he witnessed a fellow servicemember being assaulted by his superior officer. Accordingly, without any medical evidence of an acquired psychiatric disorder having been diagnosed in service, and without any objective evidence to substantiate the Veteran’s reported in-service stressor, service connection for an acquired psychiatric disorder, to include PTSD, is denied on a direct basis pursuant to 38 C.F.R. § 3.303(a). Post-service, VA treatment records show that the Veteran sought treatment for symptoms of depression and anger in 2009, and was diagnosed at that point with substance-induced depressive disorder. Subsequent VA medical records show continued treatment for mental health issues, with a June 2011 outpatient record reflecting a diagnosis of adjustment disorder, rule out PTSD, with a history of cannabis and alcohol abuse in remission. As stated before, the Veteran is competent to report having experienced symptoms of an acquired psychiatric disorder and when they began; however, he is not competent to provide a diagnosis in this case. The determination of whether lay-observable mental health symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been afforded an examination in connection with his acquired psychiatric disorder service connection claim, but VA does not have a duty to provide one here, as there is no indication that the disorder may be associated either with the Veteran’s service or with his reported but unverified in-service stressor. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran has been diagnosed with an acquired psychiatric disorder, there is no evidence in the record that the disorder has been associated with his service, to include the unverified stressor he reported as having been the impetus for the development of his psychiatric symptomatology. The Board would further note that the Veteran denied experiencing psychiatric symptomatology at separation from service. Accordingly, there is no duty to provide the Veteran with an examination to evaluate the etiology of the acquired psychiatric disorder. Without any evidence in support of the Veteran’s claim, the Board finds that no medical nexus exists between the acquired psychiatric disorder and an in-service injury, event or disease, to include the reported but unverified in-service stressor. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.159(c)(4). As the preponderance of the evidence is against the Veteran’s claim of service connection for an acquired psychiatric disorder, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel