Citation Nr: 18140544 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-11 218A DATE: October 4, 2018 ORDER Entitlement to service connection for heat stroke is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and anxiety disorder (claimed as anxiety and depression) is remanded. Entitlement to a rating in excess of 10 percent for degenerative changes of the right first metacarpointerphalangeal joint (previously degenerative arthritis claimed as broken right foot) is remanded. FINDING OF FACT Heat stroke disability is not shown at any time since the Veteran’s claim was filed in June 2012. CONCLUSION OF LAW The criteria for service connection for heat stroke have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from August 1990 to November 1990, with subsequent active duty Reserve service. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of August 2013 and February 2016. A rating decision of June 2016 denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran did not appeal. VA correspondence of March 2017 and April 2018 erroneously notified the Veteran that a timely notice of disagreement (NOD) had not been filed with respect to the August 2013 rating decision. The Veteran filed a timely NOD in September 2013. A statement of the case was issued in February 2016, and the Veteran perfected an appeal with the filing of VA Form 9 in March 2016. Entitlement to service connection for heat stroke. In June 2012, the Veteran filed a service-connection claim for “anxiety (heat stroke)” and “depression (heat stroke).” A rating decision of August 2013 denied service connection for 1) heat stroke and 2) major depression disorder and anxiety disorder. The Veteran appealed. See notice of disagreement of September 2013; VA Form 9 of March 2016. In general, service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In August 2013, the Veteran underwent a VA examination for the central nervous system and neuromuscular diseases. The medical history noted that the Veteran experienced dizziness, headache, fatigue, and nausea in July 1993 following physical training during service. He told the examiner that he had been diagnosed with heat exhaustion and returned to his unit for regular duties after four to five days of recuperation. The examiner determined that the Veteran had no current symptoms of heat stroke and that the heat injury resolved in 1993. A negative nexus opinion was offered on the basis that the Veteran’s heat stroke was diagnosed, treated, and resolved in 1993. There is no medical record that diagnoses the Veteran as having heat stroke as a current disability. As a layperson, the Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not competent, however, to diagnose a disability such as heat stroke, and no Jandreau exception applies. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection presupposes a current disability. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303 (2017); Degmetich v. Brown, 104 F. 3d 1328 (1997). Here a preponderance of the competent and probative evidence is against finding that the Veteran has a current heat stroke disability. A service treatment record indicates that the Veteran was treated for “heat injury-dehydration” in July 1993 while on active duty for training in the U.S. Army Reserves. With the first element of Shedden not having been met, however, it is not necessary to analyze the remaining elements of service connection, and the claim must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder and anxiety (claimed as anxiety and depression). In June 2012, the Veteran filed a service-connection claim for “anxiety (heat stroke)” and “depression (heat stroke).” The scope of his claim includes any disorder reasonably encompassed by the description of the claim, symptoms, and all information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A rating decision of August 2013 denied service connection for heat stroke as well as for major depression disorder and anxiety disorder. The Veteran appealed. See NOD of September 2013; VA Form 9 of March 2016. In July 2013, the Veteran underwent a VA examination for mental disorders. The examiner diagnosed major depressive disorder, anxiety disorder NOS, and polysubstance abuse. Current reported symptoms included depressed mood and lack of motivation and energy. The Veteran stated that his mental health symptoms began during service in 1990 as a result of stress over being deployed in the Gulf War and his decision not to reenlist. He allegedly self-medicated through substance abuse. The examiner noted a 1993 service treatment record that diagnosed heat injury-dehydration. In the examiner’s opinion, it is less likely as not that the Veteran’s psychiatric disability is related to his history of heat stroke. No rationale was provided. Rather, the examiner merely summarized the Veteran’s reported mental health history. No explanation was offered for finding that current diagnosed disability was more likely than not unrelated to a disease or injury during service. A February 2016 record of Dr. D. K. indicates that the Veteran’s diagnosed major depressive disorder is “secondary to his military experiences.” No rationale is provided. The finding appears to be based entirely on the Veteran’s report of an in-service onset. Dr. D. K. notes that the Veteran was unable to point to a specific, in-service experience that was felt to be traumatic. As a layperson, the Veteran is not competent to associate his current psychiatric symptoms with an event during service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board may not disregard a medical opinion solely because it is based on a history given by a veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). However, Dr. D. K.’s transcription of lay history, with no medical comment, is not transformed into competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A VA examination and opinion must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here the July 2013 VA examination report is inadequate because no rationale was provided for the negative nexus opinion. See Miller v West, 11 Vet. App. 345 (1998); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Under the circumstances, the Board will remand for a clarifying VA medical opinion. 38 C.F.R. § 19.9(a). Entitlement to a rating in excess of 10 percent for degenerative changes of the right first metacarpointerphalangeal joint (previously degenerative arthritis claimed as broken right foot). In June 2012, the Veteran filed a service-connection claim for “broken right foot.” A rating decision of August 2013 granted service connection for 1) degenerative changes of the right metacarpointerphalangeal joint and 2) degenerative arthritis. A noncompensable evaluation and an effective date of June 27, 2012, was assigned with respect to both disabilities. The Veteran appealed. See NOD of September 2013; VA Form 9 of March 2016. A subsequent rating decision of February 2016 determined that a clear and unmistakable error (CUE) had been made in failing to grant an appropriate evaluation for the right first metacarpointerphalangeal joint and in separately evaluating degenerative arthritis right foot. The specific error was not identified or explained. Under the new evaluation, degenerative arthritis of the right foot was rated with the first metacarpointerphalangeal joint, and the rating was increased to 10 percent, with an effective date of June 27, 2012. The Veteran most recently underwent a VA examination for ankle conditions in February 2018 and for foot conditions in June 2016. By a filing of July 2018, the Veteran asserts that his service-connected right foot disability has worsened. A new VA examination is therefore warranted to ascertain the current severity of the disability. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990). The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all relevant treatment records relating to the remanded claims. All records/responses received must be associated with the electronic claims folder. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current psychiatric disability is at least as likely as not related to service, including heat injury-dehydration diagnosed in 1993 and the Veteran’s report of first feeling depressed and stressed during service. A rationale for all opinions in the report must be provided. An examination of the Veteran should be scheduled only if the clinician determines this is necessary to obtain the requested opinion. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected right foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right foot disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel