Citation Nr: 18140353 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-31 012A DATE: October 2, 2018 ORDER The appeal for entitlement to service connection for hypertension is dismissed. The appeal for entitlement to service connection for pulmonary embolism is dismissed. The appeal for entitlement to service connection for status post colon resection is dismissed. The appeal for entitlement to service connection for left ankle arthritis is dismissed. The appeal for entitlement to service connection for bilateral knee arthritis is dismissed. The appeal for entitlement to service connection for bilateral shoulder arthritis is dismissed. The appeal for entitlement to service connection for bilateral hand arthritis is dismissed. The appeal for entitlement to service connection for bilateral foot arthritis is dismissed. Entitlement to service connection for a bilateral eye condition is denied. Entitlement to service connection for residuals of recurring incisional hernia with associated scarring is granted. Entitlement to service connection for hiatal hernia is denied. REMANDED Entitlement to service connection for osteoarthritis, right ankle is remanded. Entitlement to service connection for lumbar disc disease with sciatica is remanded. Entitlement to service connection for depression, also claimed as PTSD is remanded. FINDINGS OF FACT 1. In November 2017, prior to the promulgation of a decision in the appeal, the Board received a request from the Veteran to withdraw the appeals for service connection for hypertension, pulmonary embolism, status post colon resection, left ankle arthritis, bilateral knee arthritis, bilateral shoulder arthritis, bilateral hand arthritis, and bilateral foot arthritis. 2. The preponderance of the evidence is against finding that the Veteran has an eye disability due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s residuals of a recurring incisional hernia with associated scarring is at least as likely as not related to his military service. 4. The preponderance of the evidence is against finding that the Veteran has a hiatal hernia due to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for service connection for hypertension, pulmonary embolism, status post colon resection, left ankle arthritis, bilateral knee arthritis, bilateral shoulder arthritis, bilateral hand arthritis, and bilateral foot arthritis by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for a bilateral eye disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for residuals of recurring incisional hernia with associated scarring are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a hiatal hernia are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 1987 and from November 1990 to April 1991, with additional periods of duty in the Reserve and National Guard over the course of several years. Dismissal 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. 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. 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, in the November 2017 hearing, has withdrawn the appeal for entitlement to service connection for hypertension, pulmonary embolism, status post colon resection, left ankle arthritis, bilateral knee arthritis, bilateral shoulder arthritis, bilateral hand arthritis, and bilateral foot arthritis and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals for service connection for hypertension, pulmonary embolism, status post colon resection, left ankle arthritis, bilateral knee arthritis, bilateral shoulder arthritis, bilateral hand arthritis, and bilateral foot arthritis, and the claims are dismissed. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). In rendering a decision on 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a bilateral eye condition The Veteran contends that as a result of an injury during a basketball game during active service that he has a current eye disability. After a thorough review of the evidence, the Boards finds that entitlement to service connection for an eye disability is not warranted. The Veteran’s service treatment records (STRs) show he reported an elbow or finger hit him in the eye during a basketball game and he sought treatment in June 1987. The Veteran’s entrance examination in June 1984 and separation examination in August 1987 show that the Veteran worse corrective lenses but did not note any damage to the eyes. The Veteran’s records also show complaints of blurry vision during active service in October 1984 and May 1987, as well as treatment for a laceration above the eye in April 1987, and routine vision care. The Veteran was afforded a VA examination in November 2012 for his eyes. The examiner diagnosed current eye conditions of conjunctivitis, dry eye, and pinguecula, but no visual impairment. The examiner stated that the Veteran’s current conditions were unrelated to the conditions reported in the Veteran’s STRs, as such there was no opinion to give relating to active service because they were separate and unrelated conditions that were not residuals of any eye injury. The Veteran’s VA treatment records show that he continues to receive treatment for dry eye and uses prescription eye drops to treat the condition, noted, for example, in the December 2013 treatment note. While the Board acknowledges the Veteran’s credible reports of eye symptoms, there is no competent medical evidence to tie a current eye disability to his military service. Meaning, the Board cannot find a correlation between the current diagnoses and an in-service incurrence. Accordingly, service connection for a bilateral eye disability is denied. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has a eye disability related to service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of eye disabilities are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of any current eye disability is not competent medical evidence. Thus, the Veteran’s own opinion regarding the etiology of his eye disabilities is not competent evidence. The Board finds the opinions of the VA examiner to be significantly more probative than the Veteran’s lay assertions. See King v. Shinseki, 700 F.3d 1339, 1344 (2012). As the preponderance of the evidence is against finding that the Veteran’s eye injury during active service is related to any current eye condition, the Board finds that service connection is not warranted. 2. Entitlement to service connection for residuals of recurring incisional hernia with associated scarring The Veteran contends that as a result of doing sit-ups during reserve training duty, he developed a hernia, resulting in surgery in December 2008. After a thorough review of the evidence, the Board finds that service connection is warranted for residuals of incisional hernia with associated scarring, but not for hiatal hernia. The Board notes that the Veteran has made claims for service connection for hiatal hernia as well as “abdominal hernia,” and will address them all as under the category of “hernia” in accordance with the holding of Clemons. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons, 23 Vet. App. 1 at 5 (2009). For periods of active duty for training (ACDUTRA), the presumption of soundness does not apply to a claimant who had only ACDUTRA and who is not otherwise a veteran. Paulson v. Brown, 7 Vet. App. 466, 471 (1995). For veterans who have achieved “veteran” status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies ONLY when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 4546 (2010). Thus, a claimant who has “veteran” status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. Where a claim is based on a period of ACDUTRA, the presumption of aggravation is not applicable, if the claimant has achieved “veteran” status during a prior period of service. Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). With respect to a claim for aggravation of a preexisting condition during ACDUTRA, because the “active military, naval, or air service” that, under 38 U.S.C. § 1153, is a prerequisite for benefits based on a theory of aggravation requires the aggravation to occur “in [the] line of duty” (38 U.S.C. § 101(24)(B)), the application of 38 U.S.C. § 101(24)(B) requires direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. In the present case, the Veteran contended in a September 2014 written statement and in the November 2017 Board hearing that the hernia condition developed during a period of ACDUTRA in 2008, thus he had already achieved veteran status at this point in time. Medical treatment records show that the Veteran had colon surgery and a colostomy performed in 2001. From the available medical records, the Veteran appears to have been asymptomatic in the years following his 2001 surgery and prior to the 2008 complaints of abdominal pain. The Veteran’s STRs show he was diagnosed with an abdominal muscle strain after lifting weights in 1986. An October 6, 2008 note from a private treatment provider notes that the Veteran was seen for abdominal pain after doing sit-ups. An October 19, 2008 note in the Veteran’s service treatment records show he was evaluated for hernia at Robins Air Force Base and the medical provider recommended that the Veteran abstain from sit-ups and running. In December 2008, the Veteran had corrective surgery for an incisional hernia that had developed. In March 2009, the Veteran was diagnosed with incisional hernia and reported that sit-ups cause pain to the abdomen. In April 2010, the Veteran underwent another corrective hernia surgery. An August 29, 2010 note in the Veteran’s STRs show physical training restriction of excusing the Veteran from sit-ups with no expiration date. While the medical provider noted that there was no current hernia, there was “sound fear” that doing sit-ups might result in another hernia based on the Veteran’s history of recurrent incisional ventral hernias. The Veteran submitted a claim for VA compensation for hernia in September 2011. The Veteran’s records show that he contended in 2011 that he had damaged his prior abdominal surgical site by doing sit-ups during active service in early 2008 at active duty for training. The purpose of the Veteran’s action was to request reimbursement for related medical expenses from his assigned military unit. In December 2009, the Veteran’s unit leadership produced a line of duty determination that the Veteran’s hernia had developed from physical training during ACDUTRA. Subsequently, in February 2010, the Veteran’s related medical expenses for hernia treatment were approved in accordance with the line of duty report. This report lists expenses from March and April 2008 for abdominal pain treatment, but cautioned that due to the ambiguity in the medical records the expenses may not be justified. The Veteran was placed on the retired Reserve list in July 2012 with a notation of physical disqualification for active duty status. The Veteran was afforded two VA examinations in December 2012, one examination for hernias unrelated to hiatal hernia, and another examination for hiatal hernias. The examiner for the general hernia examination opined that the Veteran’s previous hernia conditions were less likely than not related to the pulled abdominal muscle reported in service in 1986. The examiner noted that the Veteran did not have a current hernia, but did have related scarring from prior surgeries. As for the hiatal hernia examination, the examiner opined that the Veteran’s hiatal hernia was diagnosed around 2011 and was less likely than not related to the abdominal strain treated in 1986. The Veteran was afforded a VA examination for scars in December 2012. The examiner noted that the abdominal scarring was secondary to the Veteran’s various surgeries in that region. In a May 2014 VA treatment note, the Veteran complained of burning in the stomach and though he still had a hernia, despite previous removal of the gall bladder. The history associated with that entry notes the Veteran’s colon resection and removal in 2001, abdominal hernia repair in December 2008, and right inguinal hernia repair in 1997. The Veteran was taking prescription acid reduction medication. However, the competent evidence of record does not support that the Veteran’s hiatal hernia is a result of injury during active service or another qualifying period of service, or otherwise related to active service. As the preponderance of the evidence is against finding that the Veteran’s hiatal hernia is unrelated to active service, the Board finds that service connection is not warranted for hiatal hernia. As noted above, the Veteran is competent to report symptoms associated with his hiatal hernia; however, as a layperson, he is not competent to render medical diagnoses or render an opinion on complex medical questions such as the etiology of his hiatal hernia. Accordingly, the Board has placed greater probative weight on the opinion proffered by the December 2012 VA examination. As the weight of the competent evidence does not show that the Veteran has had a hiatal hernia during the course of the appeal, the claim for service connection for a hiatal hernial is denied. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). While the medical treatment records do not support that the Veteran has had a current hernia during the appeal period, other than a hiatal hernia (addressed above), the examinations show that the Veteran has residual scarring from surgical correction of an incisional ventral hernia that, resolving reasonable doubt in favor of the Veteran, erupted during physical training on ACDUTRA. Accordingly, the Board resolves reasonable doubt in favor of the Veteran to find that service connection for residuals of a recurring incisional hernia with associated scarring is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for osteoarthritis, right ankle is remanded. The Veteran’s STRs have a notation dated November 1985 of complaints of right ankle swelling and pain and an impression of arthritis in the right ankle. The Veteran was afforded a VA examination in November 2012 and the examiner evaluated current imaging of the Veteran’s right ankle and stated that there was no arthritis, but there was a bone spur. The examiner opined that it was less likely than not that the Veteran had a right ankle condition related to active service. The Veteran submitted a medical opinion from a private provider dated August 2013 who stated that the original impression in service of right ankle arthritis was correct and the current right ankle arthritis diagnosis is a likely result of active service. This provider also performed tendon surgery on the Veteran’s right ankle and foot previously. The Board needs a clarification opinion on whether the Veteran has a current diagnosis of arthritis that includes a reconciliation of the conflicting opinions in the record. This will likely necessitate X-rays of the right ankle to determine if the Veteran has arthritis. 2. Entitlement to service connection for lumbar disc disease with sciatica The Veteran stated that his lower back condition, currently diagnosed as degenerative disc and joint disease, was related to his right ankle condition according to his medical provider. The Veteran was afforded a VA examination for his lower back in November 2012 and the examiner opined that the lumbar DJD and DDD were less likely than not related to service based on direct service connection, but no opinion was given regarding a secondary etiology. Because a decision on the remanded issue of service connection of the right ankle could significantly impact a decision on the issue of lower back disability, the issues are inextricably intertwined. A remand of the claims for lower back disability is required. 3. Entitlement to service connection for depression, also claimed as PTSD is remanded. The Veteran contended in the November 2017 Board hearing that he has PTSD and depression as a result of seeing a soldier run over by a tank in a training exercise while stationed at Fort Irwin. The Veteran submitted an opinion dated August 2017 from a licensed therapist diagnosing the Veteran with PTSD and depressive disorder as a result of this incident. The therapist states in the letter that “there are no other known risk factors” that could have resulted in the Veteran developing these conditions. However, in the Veteran’s VA treatment records, which do show treatment for depressive and mood disorder dating back to at least 2006, there is a notation dated March 2006 in which the Veteran stated he had started to distance himself from others after a girlfriend was killed by another friend about 20 years earlier. Additionally, the Veteran’s records show that he complained of depression related to his medical conditions and uncertainty surrounding his military separation around 2011. The Veteran should be afforded a VA examination to reconcile this evidence. The RO should make a determination regarding the claimed stressor of a soldier being run over by a tank and another soldier being hit by a train, as the Veteran claimed in the November 2017 Board hearing.   The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle arthritis, to include new X-rays of the right ankle. (a.) The examiner must opine whether any right ankle condition diagnosed is at least as likely as not related to an in-service injury, event, or disease, including a reference to the November 1985 note in the STRs indicating the presence of right ankle arthritis. (b.) The examiner must opine whether any diagnosed right ankle condition at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) The examiner must reconcile his or her opinion with other evidence, to include the opinion from Dr. O dated August 2013 referencing the tendon surgery and the opinion on arthritis. (d.) If the Veteran is diagnosed with a right ankle disability, the examiner should opine whether the Veteran’s lower back conditions are secondary to the Veteran’s right ankle disability or was aggravated by the Veteran’s right ankle disability. If the examiner is not qualified to make such a determination, then the examiner should refer this opinion request to a qualified examiner. The necessity for a new lumbar spine VA examination is at the discretion of the examiner(s). 2. Attempt to corroborate the Veteran’s in-service stressors, including the report that a solider was run over and killed by a tank, and another soldier was hit by a train during the time of service of the Veteran. If more details are needed, contact the Veteran to request the information. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. (a.) In the opinion, the examiner must reconcile his or her opinion with that of the therapist in the August 2017 letter diagnosing PTSD and depressive disorder. (b.) In the opinion, the examiner must reconcile previous reports of depression due to the murder of a girlfriend around 1986 (reported March 2006 VA treatment notes) and various reports connection the Veteran’s depression with his medical conditions and stress related to separation from service (reported variously, e.g. October 2011 VA treatment note). If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the reported stressors. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)