Citation Nr: 18145433 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-15 097A DATE: October 29, 2018 ORDER Entitlement to service connection for an inguinal hernia is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is denied. REMANDED Entitlement to service connection for residuals of a lower back injury is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a groin condition is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has an inguinal hernia that is related to military service. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a bilateral ankle disorder. 3. The preponderance of the evidence is against finding that the Veteran’s insomnia began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an inguinal hernia have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for a bilateral ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to September 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA). In an April 2016 substantive appeal, the Veteran requested a hearing before the Board. Thereafter, in November 2017, the Veteran withdrew his hearing request. Accordingly, the Board finds that his hearing request has been withdrawn. See 38 C.F.R. § 20.704(d), (e). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for an inguinal hernia The Veteran contends that he has an inguinal hernia condition that is related to his military service. 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. The Veteran filed his claim for an inguinal hernia in May 2015. He had previously been diagnosed with a left inguinal hernia in 2008, approximately one year after he left military service, after he failed a pre-employment physical examination. Notably, during the Veteran’s September 2015 VA examination, the examiner specifically noted a right inguinal hernia, but no left inguinal hernia was detected upon examination. The Veteran has stated that he started feeling the symptoms of a right inguinal hernia in 2012. Therefore, the Veteran’s claim can only pertain to his right inguinal hernia as there are no indications that the left inguinal hernia manifested or was observed during the pendency of the Veteran’s claim. The Board concludes that, while the Veteran has a current diagnosis of a right inguinal hernia, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a right inguinal hernia began during 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). By the Veteran’s own statements, he did not start experiencing symptoms of a right inguinal hernia until 2012. Further, the September 2015 VA examiner opined that the Veteran’s right inguinal hernia is not at least as likely as not related to an in-service injury, event, or disease. The examiner cited the fact that the right inguinal hernia occurred after the Veteran’s separation from military service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran’s separation examination, which noted multiple other issues, made no mention of any issues that could be interpreted as a symptom of an inguinal hernia. Despite the Veteran’s statement that the VA examiner opined in favor of service connection, the written examination opinion opines against a connection to service. No medical provider has opined in favor or a linkage between the Veteran’s right inguinal hernia and his military service. While the Veteran believes his right inguinal hernia is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the above-referenced evidence. Without any basis to suggest that the Veteran’s right inguinal hernia is related to military service, the Board finds that the weight of the competent evidence does not attribute the disorder to military service. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a bilateral ankle disorder The Veteran asserts that he has a bilateral ankle disorder that is related to military service. 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. The Board concludes that the Veteran does not have a current diagnosis of a bilateral ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The October 2016 VA examiner evaluated the Veteran and determined that, while the Veteran experienced subjective symptoms of ankle pain, he did not have a diagnosis of a bilateral ankle disability. At the examination, the Veteran reported that he injured his left ankle in Iraq when he heard a popping sound after twisting it. A buddy statement from the Veteran’s bunkmate confirms the Veteran’s account of an ankle injury. With regards to his right ankle, he recalls hearing a “snap” in his right ankle that caused swelling for approximately a day or two. He also recalled that he would roll his ankles on occasion. The Veteran’s current symptoms consist of intermittent ankle pain that bother him “once in a while.” He also reported previous tingling. His ankle pain episodes last from hours to as much as two days. Nevertheless, the examiner concluded that the objective findings of the examination, which included reported tenderness to palpation of the ankles and mild ankle pain, is insufficient to suggest a specific condition. Moreover, while the Veteran may be competent to report having pain or tenderness in a certain region, the evidentiary record does not reflect any resulting disability or functional impairment. See Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). Notably, the VA examiner stated that there was no impact on the Veteran’s occupation as a delivery driver. While the Veteran believes he has a current diagnosis of a bilateral ankle disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and finds service connection is not warranted for a bilateral ankle disability. 3. Entitlement to service connection for insomnia The Veteran contends that he has insomnia that is related to his military service. 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. The Board concludes that, while the Veteran is competent to report insomnia, the preponderance of the evidence is against finding that it 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). There are no indications that the insomnia manifested during service or any time before he first filed his claim in May 2015. The Veteran’s insomnia has not been mentioned previously in his medical records. Indeed, during his August 2015 VA psychological examination, he reported variable sleep patterns secondary to working nights. He further denied experiencing sleep disturbances. Moreover, there are no treatment records establishing that the Veteran’s insomnia is related to active duty or a service-connected disability, nor has any physician asserted that such a relationship exists. Without any basis to suggest that the Veteran’s insomnia is related to military service, the Board finds that the weight of the competent evidence does not attribute the disorder to military service. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety The Veteran has filed a claim asserting service connection for PTSD, depression and anxiety, which he attributes to his service in Iraq. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Initially, the Board concludes that the Veteran does not have a current diagnosis of PTSD, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In August 2015, the Veteran underwent a VA psychological examination. The examiner concluded that the Veteran does not have a mental disorder that meets the DSM-V criteria. Specifically, the Veteran stated that he had been married for over five years and had two children. He explained that his ongoing discord with his wife was the primary reason he decided to engage in outpatient mental health treatment. He also reported being irritable and impatient. He enjoyed spending time with his family and had positive relationships with others. He worked for the same company for multiple years and was enrolled in a technical program for information technology. The examiner determined that the Veteran meets Criterion A for PTSD as he endorsed exposure to rocket and gunfire as well as mortar fire. However, he did not meet Criterion B as he did not endorse any re-experiencing symptoms associated with his Criterion A stressors. He also does not meet Criterion C because he did not endorse experiencing any avoidance symptoms associated with his Criterion A stressors. Moreover, he does not meet Criterion D because his typical mood was calm and passive. Finally, he does not meet Criterion E because he reported experiencing variable sleep patterns secondary to working nights, but denied experiencing sleep disturbances. The examiner concluded that he did not endorse symptoms consistent with PTSD. The Board acknowledges that during a session with a psychologist in November 2012, the psychologist noted the need to rule out PTSD. However, simply specifying the need to rule out a specific diagnosis is not sufficient to be a diagnosis in and of itself. Additionally, the Veteran was diagnosed with PTSD by a social worker in November 2012. However, the Board assigns significantly more probative value to the opinion provide by the VA medical examiner, who is a clinical psychologist. The clinical psychologist closely followed the guidelines set forth in the DSM-V as required by law. See 38 C.F.R. § 4.125. In contrast, the social worker only generally discussed the DSM-V criteria. Furthermore, the ability for a social worker to properly make an initial medical diagnosis of PTSD is in question. Consequently, the Board finds that service connection for PTSD is not warranted. Nevertheless, the Board recognizes that the Veteran has also claimed service connection for depression and anxiety. 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. The Board concludes that the Veteran does not have a current diagnosis of anxiety or depression and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The August 2015 VA examiner evaluated the Veteran and determined that, while he may have experienced subjective symptoms of depression or anxiety, he did not have a diagnosis of either condition. The Veteran reported enjoying spending time with his family and doing random family activities. He described having positive relationships with others. He denied a pre-military, military, or post-military history of suicide attempts, non-suicidal self-injury, as well as a history of assaultive behavior. He also denied any legal or criminal problems. The examiner noted that while the Veteran endorsed experiencing mild anxiety in very crowded places such as amusement parks, he did not depict experiencing a clinical level of anxiety. The Veteran described it as “slight nervousness.” The examiner also stated that the Veteran did not endorse experiencing disturbances in energy level or appetite. Therefore, the VA examiner concluded that the Veteran does not currently meet the DSM-V criteria for a psychological disorder. The Board acknowledges that the Veteran has previously been assigned a diagnosis of anxiety. In November 2012, a VA psychologist diagnosed the Veteran with an anxiety disorder, not otherwise specified. The psychologist specified that the disorder was characterized by anxiety and depression. However, the psychologist appears to be uncertain with the diagnosis. Specifically, the examiner noted that the Veteran admitted to some symptoms of mild depression. However, the psychologist herself does not describe any reports of the Veteran’s anxiety or how it affects him. Therefore, the Board assigns the VA examiner’s more through opinion more probative value. The Board notes that the Veteran also sought treatment for anxiety, but declined a referral to a mental health provider. Nevertheless, this medical treatment is not in opposition with the VA examiner’s conclusion as the examiner stated that the Veteran had symptoms of anxiety, but not to a clinically significant level. Consequently, the Board finds that the Veteran does not have a current mental health diagnosis and has not had one during the pendency of the claim. On a final note, the Board would still not have granted service connection even if it was found that the Veteran did have a diagnosis of depression and/or anxiety. The August 2015 VA examiner attributed the Veteran’s current mental health issues to his relationship distress with his spouse. Therefore, the Veteran’s current mental health issues are linked to his personal relationship rather than to military service. While the Veteran believes he has a current diagnosis of an acquired psychiatric disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and finds service connection is not warranted for an acquired psychiatric disorder. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a lower back injury is remanded. The Veteran is seeking service connection for residuals of a lower back injury. At his July 2007 separation examination, he complained of recurrent back pain. In the evaluation section, the examiner noted that the Veteran complained of lower back pain when either standing or sitting too long as well as sometimes after waking up in the morning. For an unknown reason, this detailed comment was crossed out with the Veteran initialing next to the comment. Nevertheless, the Board finds that the Veteran’s separation examination may be sufficient to indicate that the Veteran had back problems during service. After service, the Veteran has complained of chronic, intermittent low back pain. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded a VA examination to determine the nature of his lower back disorder and the relationship, if any, of such disability to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran will also be asked to clarify the significance of the crossed-out remark upon remand. 2. Entitlement to service connection for a left knee disorder is remanded. The Veteran is seeking service connection for a left knee disorder. At his July 2007 separation examination, he complained of knee trouble. In the evaluation section, the examiner noted that the Veteran complained of his knees popping, knee pain after runs and long walks, and knee pain sometimes during the morning. Similar to the above situation with the Veteran’s back condition, this detailed comment was crossed out with the Veteran initialing next to the comment. The Board again finds that the Veteran’s separation examination may be sufficient to indicate that the Veteran had knee problems during service. After service, the Veteran has complained of knee pain. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded a VA examination to determine the nature of his left knee disorder and the relationship, if any, of such disability to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran will also be asked to clarify the significance of the crossed-out remark upon remand. 3. Entitlement to service connection for a groin condition is remanded. The Veteran is seeking service connection for a groin condition. During an April 2006 medical evaluation during service, the treatment provider noted small painless lesions superior to the Veteran’s right testicle. After service, the Veteran has complained on multiple occasions about what appears to be similar lesions in the same area. As there is insufficient medical evidence to decide the claim, the Veteran should be afforded a VA examination to determine the nature of his groin disorder and the relationship, if any, of such disability to service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 4. Entitlement to service connection for tinnitus is remanded. Regarding the claim of entitlement to service connection for tinnitus, the Veteran submitted a timely notice of disagreement with an October 2015 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 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 residuals of a lower back injury. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The Veteran should also be asked to remark on the significance of his crossed-out comment on his separation examination. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a left knee disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The Veteran should also be asked to remark on the significance of his crossed-out comment on his separation examination. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any groin condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. 4. Send the Veteran a statement of the case that addresses the issue of entitlement to service connection for tinnitus. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Borman, Associate Counsel