Citation Nr: 18146399 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-31 434 DATE: October 31, 2018 ORDER The claim for entitlement to service connection for GERD is granted. The claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. The claim for entitlement to service connection for a chronic disability of the left leg muscle is denied. REMANDED The claim for a rating higher than 50 percent for an adjustment disorder with disturbance of emotions is remanded. The claim for a rating higher than 10 percent for a left knee strain is remanded. The claim for a rating higher than 10 percent for a right knee strain is remanded. The claim for entitlement to service connection for fibromyalgia is remanded. The claim for entitlement to service connection for a bilateral shoulder disability is remanded. The claim for entitlement to a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s GERD had its onset during active duty service. 2. The Veteran does not have PTSD. 3. The Veteran does not have a chronic disability of a left leg muscle. CONCLUSIONS OF LAW 1. Service connection for GERD is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. PTSD was not incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. A chronic disability of a left leg muscle was not incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2009 to November 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012, September 2012, and November 2013 rating decisions issued by Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a hearing officer at the RO in February 2013. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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”-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 1. Entitlement to service connection for GERD. The Board finds that service connection is warranted for GERD as the disability had its onset during active duty service. The medical evidence of record demonstrates that the Veteran sought treatment for complaints of heartburn and reflux on several occasions during active duty service. The condition was diagnosed by a private provider in November 2009 and a private gastroenterologist in August 2010. Records from the VA Medical Center (VAMC) show that the Veteran has received treatment and medication for GERD throughout the post-service claims period. The Board therefore finds that the Veteran’s GERD had its onset during service and service connection is warranted for the claimed disability. 2. Entitlement to service connection for PTSD. The Veteran contends that service connection is warranted for the specific condition of PTSD as it was incurred due to several traumatic experiences during active duty service. In an October 2012 statement, the Veteran described several in-service stressors including a sexual assault, verbal and physical harassment from soldiers and a commanding officer, and trauma related to the removal of his gallbladder in October 2009. After review of the evidence, the Board finds that service connection is not appropriate for PTSD as the weight of the evidence is against the finding of a current disability. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, (5th ed.) (2016) (DSM V)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred (unless the evidence shows that the Veteran engaged in combat and the claimed stressor is related to combat). 38 C.F.R. § 3.304(f). The record contains evidence weighing both for and against a finding of PTSD. The condition was identified by a private provider in February 2012 based on the Veteran’s reports of emotional abuse by a commander in the military and symptoms of flashbacks and nightmares. PTSD was also diagnosed at an October 2012 VAMC examination provided through the Center for Traumatic Stress based on the Veteran’s reports of trauma associated with complications from in-service gallbladder surgery. From that point forward, the Veteran’s VAMC treatment records regularly refer to the diagnosis of PTSD, though he was not provided any other psychiatric examination to specifically confirm the finding. The Board also notes that other providers appear to link a diagnosis of PTSD to military sexual trauma, despite the Veteran’s inconsistent reports regarding whether a sexual assault occurred. Although the record contains some evidence that the Veteran meets the criteria for a diagnosis of PTSD, the Board finds that the evidence weighing against the claim is more persuasive. The Veteran was a provided a VA psychiatric examination in September 2013 and the examiner specifically found that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner, as part of a thorough review of the Veteran’s mental health history, noted the previous diagnoses of PTSD in the record, but included a discussion of the Veteran’s specific stressors and concluded they did not meet the criteria to support a diagnosis of PTSD. The examiner further noted that the Veteran’s reports of symptoms and stressors has varied significantly over time, which calls into question the Veteran’s credibility as a historian and his recollection of past events and symptoms. The VA examiner acknowledged that the Veteran was a diagnostically challenging examination with many different diagnoses from many different providers (often rendered without supporting evidence), but a diagnosis of PTSD was not warranted based on the Veteran’s examination and range of stressors that did not meet criteria A for a finding of PTSD. The Board observes that the September 2013 VA examination was a far more in-depth review of the Veteran’s symptoms and history than any evaluation previously performed at the VAMC or by a private provider. The Board therefore finds that the VA examination is entitled to significant probative weight. Evidence received from the Veteran in January 2018 also weighs against the claim. In support of his claims for increased ratings and unemployability, the Veteran submitted a December 2017 private disability benefits questionnaire (DBQ) and psychiatric examination. The DBQ and accompanying examination report specifically note that the Veteran has only one diagnosed mental health condition: an adjustment disorder with mixed disturbance of emotions and conduct. The private examiner found that all the Veteran’s mental health symptoms and impairment were due to this service-connected disability. PTSD was not diagnosed and the examiner found that the Veteran’s stressors (reported as an abusive commander, sexual assault, and multiple hospitalizations for mental and physical conditions) were related to an adjustment disorder, not PTSD. Therefore, this private examination does not support the claim for service connection for PTSD. The Board has considered the statements of the Veteran that he has PTSD. Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Board finds that the Veteran is not competent to diagnose the presence of PTSD. He is competent to identify and explain the symptoms that he observes and experiences, but psychiatric disorders require more than a simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Psychiatric disorders are by their very nature complex disabilities that require specialized training to properly diagnose. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also explicitly stated that PTSD is not capable of a lay diagnosis. Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) (“PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”). The Board therefore finds that the Veteran is not competent to diagnose himself with PTSD. As such, the diagnoses of PTSD in the Veteran’s private and VAMC records based purely on his own statements are of no probative value. In sum, the weight of the competent evidence establishes that the Veteran does not have PTSD. Although there is some evidence of the condition in the Veteran’s private and VAMC treatment records, the Board finds that the evidence weighing against the claim, including the September 2013 VA examination and December 2017 private DBQ examination, are more probative. The Board has considered the statements of the Veteran that he has PTSD, but finds that he is not competent to render a medical opinion in this instance. Thus, the weight of the competent evidence of record establishes that the Veteran does not have PTSD in accordance with 38 C.F.R. § 4.125(a). 3. Entitlement to service connection for a chronic disability of the left leg muscle. The Veteran contends that service connection is warranted for a muscular disability of the left leg. 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 disability of any muscle of the left leg 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). Service treatment records show that the Veteran was treated in May 2010 for complaints of left leg pain that first occurred while running. He reported the sudden onset of pain in the left calf and was told to seek medical care by his sponsor due to limping. The Veteran was diagnosed with a leg strain of the left gastrocnemius muscle. There are no other complaints related to the left leg muscles in the service records. Although the Veteran complained of left leg pain on several other occasions, these symptoms and complaints were associated with the left knee and service connection is already in effect for a left knee disability. As service records only document one acute complaint of left leg muscle pain, the Board finds that a chronic leg muscle condition was not incurred during active duty service. The Board also observes that injuries and conditions documented during active service are not sufficient to establish the presence of a current disability. The requirement of a current disability is met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (finding that the Board must address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In this case, the evidence does not establish the presence of a current disability of the left leg muscles and the Veteran’s left leg muscle sprain appears to have resolved during service without residual disability. The post-service evidence also does not establish the presence of a chronic left leg muscle disability. Post-service medical records document ongoing treatment for the Veteran’s left knee disability and nonservice-connected peripheral neuropathy of the left lower extremity, but there are no complaints specific to the muscles of the left leg. The Veteran testified in February 2013 that he experienced burning pain in the left calf like that he experienced in service; however, he has never reported this history or symptom to his private or VA providers except in the context of treatment for nonservice-connected peripheral neuropathy. The Veteran has never complained of left leg muscle pain to a healthcare provider and there is no competent medical evidence of a left leg muscle abnormality. Therefore, a chronic disability of a muscle of the left leg is not demonstrated by the competent post-service medical evidence. The Board further observes that there is no lay or medical evidence of actual functional impairment related to the Veteran’s claimed left leg muscle disability. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (holding that the term “disability” as used in 38 U.S.C. 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and that “pain alone can serve as a functional impairment and therefore qualify as a disability.”). In this case, the Veteran contends that he injured his left calf muscle during active duty and manifests a chronic disability related to that in-service injury. However, he has not provided any statements or argument describing the specific impairment related to this condition. The Veteran’s medical records document several diagnosed conditions of the left lower extremity and their associated impairment (such as pain and limitation of motion of the left knee and a loss of sensation and weakness due to peripheral neuropathy), but none of these conditions are specific to the muscles; rather, they affect the knee joint and nerves of the leg. The medical evidence in this case associating the Veteran’s symptoms with conditions that are not muscular in origin is more probative than the Veteran’s statements regarding the presence of any functional impairment associated with the claimed left leg muscle. Thus, the record does not establish any actual impairment associated with the claimed left leg muscle disability. The Board has also considered the Veteran’s statements that he manifests a disability of the left leg muscle, but the Board finds that the Veteran lacks the expertise to specifically diagnose himself with a chronic disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears (tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1377, Note 4 (Fed. Cir. 2007). The Veteran is competent to describe the symptoms manifested by the claimed disability, but considering the other diagnosed conditions of the left knee and neuropathy, the Board finds that the Veteran is not competent to determine that his symptoms are due to a separate and discreet left leg muscle condition. Therefore, the record establishes that the Veteran does not have a chronic disability of the left leg muscles. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the preponderance of the evidence is against the claim and it is denied. REASONS FOR REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the remaining claims on appeal. Regarding the claims for increased ratings, the Veteran’s service-connected adjustment disorder and knee disabilities have not been examined by VA since September 2013, more than 5 years ago. The evidence contains a December 2017 private DBQ submitted by the Veteran indicating that his adjustment disorder has increased in severity since the last VA examination. There is also no evidence detailing the impairment and functional limitations of the Veteran’s knee disabilities since the September 2013 VA examination. The Board therefore finds that VA examinations are necessary to determine the current severity of the service-connected disabilities. VA examinations are also necessary to determine the nature and etiology of the claimed fibromyalgia and shoulder disabilities. Service and post-service treatment records document complaints related to joint pain and popping shoulders. The Veteran was diagnosed with bilateral shoulder strains during a VA general medical examination in February 2011, but the examiner did not provide a medical opinion addressing whether the disability is related to the Veteran’s shoulder complaints during service. The Board also notes that while the Veteran’s VAMC treatment records note a diagnosis of fibromyalgia, this diagnosis appears to be based solely on the Veteran’s history of the condition. A VA examination and medical opinion are therefore necessary to resolve the conflict in the record. Finally, the claim for TDIU is intertwined with the remanded claims for entitlement to increased ratings and service connection. Adjudication of the claim for TDIU cannot proceed until the development ordered below is completed. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected adjustment disorder. The examiner must identify all currently present psychiatric conditions and provide a full description of the signs and symptoms of each identified disorder. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected adjustment disorder alone. There is some conflict in the record regarding the nature and severity of the symptoms associated with the service-connected adjustment disorder. The Veteran was diagnosed with an adjustment disorder and personality disorder during service and the September 2013 VA examiner attributed most of the Veteran’s psychiatric impairment and symptoms to nonservice-connected borderline personality disorder. In contrast, a December 2017 private psychiatric examiner found that all the Veteran’s mental health symptoms were related to the service-connected adjustment disorder; no other psychiatric conditions were identified. The December 2017 private examiner also identified multiple symptoms associated with a total schedular rating under the applicable rating criteria. Therefore, the VA examiner must identify all currently present psychiatric disorders and, to the extent possible, determine the symptoms and social and occupational impairment manifested only by the service-connected adjustment disorder. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his left and right knee strains. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s knee disabilities under the rating criteria, including passive and active range of motion in weight bearing and non-weight bearing. 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 the knee strains alone and discuss the effect of the Veteran’s knee disabilities 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). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present fibromyalgia. The examiner must determine whether the Veteran has fibromyalgia and if so, whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s complaints of joint pain in the neck, shoulders, and legs. If fibromyalgia is diagnosed, the examiner should also determine whether it is at least as likely as not aggravated beyond its natural progression by the service-connected adjustment disorder. Service records show that the Veteran complained of various muscle and joint pains. In July 2009, he complained of muscles aches to the shoulder and neck area and received specific treatment for conditions of the knees, left Achilles tendon, and shoulders. The first post-service evidence of fibromyalgia dates from November 2012, when the Veteran reported having the condition during a neuropsychological consultation at the VAMC. The Veteran continued to report a diagnosis of fibromyalgia and the condition is included in his VAMC problem list. However, a fibromyalgia-specific examination was not performed during the claims period, though a VAMC neurologist noted in July 2013 there was no neurologic cause for the Veteran’s reported symptoms. In December 2017, a private physician diagnosed fibromyalgia and provided medical opinions in support of service connection on a direct and secondary basis, but the diagnosis of fibromyalgia was not based on a physical examination of the Veteran. The Board therefore finds that a VA examination is necessary. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any currently present shoulder disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his complaints of shoulder muscle pain in July 2009 and physical therapy for bilateral shoulder subluxation in August 2010. The Veteran was diagnosed with bilateral shoulder strains at a VA general examination in February 2011, but no opinion was rendered regarding the etiology of the condition. More recently, the Veteran was diagnosed with left shoulder pain due to dyskinesia by a VAMC orthopedist in March 2018. 6. Then, adjudicate the claim for TDIU. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Riley, Counsel