Citation Nr: 18145391 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 14-20 594A DATE: October 30, 2018 ORDER Entitlement to service connection for traumatic brain disease due to trauma, also claimed as traumatic brain injury (TBI), is denied. Entitlement to service connection for an acquired psychiatric condition, including posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for purposes of establishing eligibility for treatment under 38 U.S.C. § 1702 for psychosis and PTSD is denied. REMANDED Entitlement to an increased rating for ganglion cyst, left wrist, also claimed as benign skin neoplasms, is remanded. Entitlement to individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran sustained a head trauma during active service. 2. The weight of the evidence is against a finding that the Veteran’s psychiatric disorder had its onset in or is otherwise related to active service. 3. There is no diagnosis of a psychosis or PTSD within two years of the Veteran’s active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for brain disease due to trauma, also claimed as traumatic brain injury (TBI), have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, Diagnostic Code (DC) 8045. 2. The criteria for entitlement to service connection for an acquired psychiatric condition, including posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, DC 9411. 3. The criteria for entitlement to service connection for establishing eligibility for treatment under 38 U.S.C. 1702 have not been met. 38 U.S.C. §§ 1110, 1111, 1702, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army during the Gulf War era from October 2003 until her discharge in November 2003. The Veteran requested a videoconference hearing, which was scheduled on September 13, 2018. However, he failed to appear at the scheduled videoconference hearing. Service Connection Applicable Law Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disabilities will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV or DSM-5); a link, established by the medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). If a stressor that is claimed by a Veteran is related to the Veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a physician or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). “Fear of hostile military or terrorist activities” means that a Veteran experienced, witnessed, or was confronted with an event 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 circumstances involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for traumatic brain disease due to trauma, also claimed as traumatic brain injury (TBI), is denied. The Veteran asserts that she is entitled to service connection for a traumatic brain disease due to trauma, also claimed as traumatic brain injury (TBI). See August 2011 Statement in Support of Claim. Analysis With regard to a present disability, the evidence shows that the Veteran reported a history of TBI to the West Palm Beach VAMC as the result of being attacked by 13 girls in December 2009. The Veteran reported that the 13 girls beat her with a hammer and a hatchet and that she was hit in the head with the hammer resulting in an emergency room visit for treatment. See West Palm Beach VA Medical Records, pp. 5, 8. The record does not reflect any diagnosis of TBI nor contain medical records from the emergency room that the Veteran sought treatment. The record does reflect that there is evidence of previous trauma on the Veteran’s left frontal scalp, which was nontender on examination. See West Palm Beach VA Medical Records, p. 43. The Board accepts the lay testimony of the current disability of TBI from the reported December 2009 incident; it is noted, however that such incident would have occurred 6 years following her active service. With regard to an in-service incurrence or aggravation of a disease or injury, the evidence is lacking. The Veteran has provided no evidence to support a TBI during service. The service treatment records reflect no head injury during service. See Service Treatment Records. The Veteran’s military personnel records reflect no incidents of head injuries during service. See Military Personnel Records. Furthermore, the only evidence of potential TBI, when the Veteran was attacked by 13 girls, demonstrates that the TBI occurred over 6 years after the Veteran was discharged from service. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of a head trauma. The second element of service connection has not been met, and an award of service connection is not warranted. See Holton, supra. Accordingly, service connection for the Veteran’s TBI claim, is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric condition, including posttraumatic stress disorder (PTSD), is denied. The Veteran asserts that she is entitled to service connection for PTSD. See August 2011 Statement in Support of Claim. VA treatment records reflect that the Veteran reported symptoms of depression and anxiety on several occasions, including passive suicidal ideation and feelings of hopelessness. See VA Medical Records. The Board is required to construe a claim for psychiatric disorder liberally to include all psychiatric disorders found. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a mental health disability claim includes any mental health disability that may reasonably be encompassed by claimant’s description of the claim, symptoms, and other information of record). The Board has recharacterized the claim to an acquired psychiatric condition, including PTSD. Analysis The Board notes that the provisions of 38 C.F.R. §4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5) for claims received by, or pending before the AOJ, on or after August 4, 2014. See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). In setting the effective date for the change in the regulation, the Secretary of the VA did not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board or were pending before the Board on that date. See 70 Fed. Reg. 45093-94 (Aug. 4, 2014). As this claim was received by the AOJ prior to the date that the new regulation became effective, the application of the Fourth Edition (DSM-IV) is appropriate in this case. At the outset, the Veteran’s service treatment records reflect no complaint, finding, or diagnosis with respect to any claimed psychiatric disorder. See Service Treatment Records. The Veteran’s military personnel records indicate service in Fort Jackson, South Carolina, from October to November 2003. See Military Personnel Records. The Veteran did not serve in any other location, nor did she participate in any combat operations. Id. Furthermore, the Veteran did not report suffering from any military sexual trauma. See Medical Treatment Records, p. 5. In summation, the record reflects no claimed stressors nor any evidence to support an in-service onset for service connection of a psychiatric condition. With regard to a present disability, the Veteran has been diagnosed with depressive disorder, anxiety and reports visual and auditory hallucinations. The Veteran declined mental health service by VAMC. See Medical Treatment Records, p. 21. With regard to an in-service stressor, the Veteran has provided no evidence of an in-service stressor that could be attributed to PTSD, including fear related to the fear of hostile military or terrorist activity; or military sexual trauma. Again, the Veteran’s service treatment records reflect no incidents of combat, the Veteran’s fear of hostile military or terrorist activity, or incidents of military sexual trauma. See Service Treatment Records. The Veteran specifically denied military sexual trauma. See Service Treatment Records, p. 13. The military personnel records likewise reflect no incidents of combat, or the Veteran’s fear of hostile military or terrorist activity, or incidents of military sexual trauma. See Military Personnel Records. Thus, without more, the preponderance of the evidence is against a finding of an in-service stressor or an onset of a psychiatric condition and an award of service connection is not warranted. See Holton, supra. Accordingly, service connection for the Veteran’s acquired psychiatric condition, including PTSD, is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for purposes of establishing eligibility for treatment under 38 U.S.C. § 1702 for psychosis is denied. Applicable Law 38 U.S.C. § 1702(a) provides that any Veterans of the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. Furthermore, 38 U.S.C. § 1702(b) provides that any Veteran of the Persian Gulf War who develops an active military illness (other than psychosis) shall be deemed to have incurred such a disability in the active military, naval, or air service if such Veteran develops such disability (1) within two years after discharge or release from the active military, naval, or air service; and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702. Analysis As noted above, the Veteran served in the United States Army from October to November 1993. The record reflects that the first report of a possible psychosis or mental condition occurred in September 2010. See Medical Treatment Records, p. 2. Because a psychosis or mental condition was not diagnosed or otherwise shown to have developed within two years of separation, 38 U.S.C. § 1702 is not applicable. Thus, service connection for purposes of establishing eligibility for treatment under 38 U.S.C. §1702 is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claim. Specifically, remand is required to obtain an adequate VA examination documenting the current severity of the Veteran’s condition. 1. Entitlement to an increased rating for ganglion cyst, left wrist, also claimed as benign skin neoplasms, is remanded. The Veteran was service connected for ganglion cyst, left wrist in a September 2009 rating decision, effective May 2009 at a noncompensable rating. The Veteran asserts that she is entitled to an increased rating for her left wrist condition. See August 2011 Statement in Support of Claim. In conjunction with the Veteran’s claim, the Veteran was provided an examination in March 2012. Upon review of the March 2012 VA examination report, the Board finds that the examination is inadequate. Specifically, although the report contains range of motion measurements for the right and left wrists, it does not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, range of motion measurements of the opposite undamaged joint, as set forth in Correia v. McDonald, 28 Vet. App. 158 (2016). See March 2012 VA Examination; see also 38 C.F.R. § 4.59. Additionally, the report was internally inconsistent where it noted that the Veteran had not had arthroscopic or other wrist surgery, but did have residual signs and/or symptoms due to arthroscopic or other wrist surgery. See March 2012 VA Examination, p. 7. As such, an additional examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to individual unemployability due to service-connected disabilities (TDIU) is remanded. Applicable Law In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased rating claim when such claim is raised by the record. In this case, the matter of unemployability due to her service-connected left wrist disability was raised by the Veteran; specifically, during the March 2012 VA examination, the Veteran reported that she was unemployed and her left wrist disability impacted her ability to work. See March 2012 VA Examination, p. 9. Therefore, the issue was raised by the record and is properly before the Board. With regard to TDIU, the issue of entitlement to TDIU is inextricably intertwined with the increased evaluation issue; therefore, entitlement to TDIU must be remanded to the RO for initial adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the severity of her service-connected ganglion cyst, left wrist. The entire claims file must be made available to and be available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the left wrist in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same test on the right wrist. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner is also asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation, such facts must be noted in the report. 2. The examination report must be reviewed to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, corrective procedures must be implemented. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL