Citation Nr: 18148344 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-18 353 DATE: November 7, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea as due to an undiagnosed illness is remanded. Entitlement to service connection for a right elbow condition is remanded. Entitlement to service connection for a right thumb condition is remanded. Entitlement to an initial compensable rating for gout of the right big toe is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to August 1987, October 2004 to January 2006, February 2006 to November 2007, November 2007 to January 2009, May 2009 to August 2010, and October 2010 to October 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and October 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448–49 (1995). Service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in “combat with the enemy.” See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be “satisfactory,” i.e., credible and “consistent with circumstances, conditions or hardships of service.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Generally, where a determination is made that a veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, a veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for PTSD. The Veteran applied for service connection for a mental health condition in January 2014. Shortly thereafter, in February 2014, the Veteran provided a statement in support of claim for PTSD. The Veteran had a VA examination for his PTSD in October 2014. Here, the examiner opined that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5, nor did he have another mental disorder that conforms with the DSM-5 criteria. A review of the Veteran’s records shows that at no time during the appellate period was he diagnosed with PTSD. The Board notes that the Veteran again requested to be evaluated for PTSD in May 2015, but still did not meet the criteria for a PTSD diagnosis. Instead, the Veteran was diagnosed with adjustment disorder versus other trauma related disorder with contributing factors including that his second wife is Vietnamese and they have language difficulties at home. The examiner explained that many individuals experience a range of PTSD symptoms but not all symptoms reach such an intensity or frequency as to endorse a diagnosis of a full disorder. As the Veteran does not have a current diagnosis of PTSD, nor did he ever have one during the appellate period, entitlement to service connection for PTSD must be denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea. The Veteran filed a claim for service connection for sleep apnea in January 2014. Following a sleep study, the Veteran provided a February 2014 letter from the Washington DC VAMC confirming a diagnosis of sleep apnea. In May 2014, the Veteran provided a sleep apnea disability benefits questionnaire from his VA physician wherein it was indicated that he has had sleep problems for about 10 years with snoring, difficulty breathing, and waking up in the night. The Veteran had a VA examination for his sleep apnea in October 2014 and the examiner opined that the Veteran’s sleep apnea was less likely than not related to service because in the time since his separation from active duty in 2012 to his sleep apnea diagnosis, the Veteran gained approximately 55 pounds. The examiner thus opined that the Veteran’s current sleep apnea was more likely related to his recent weight gain than his time in service. Thereafter, the Veteran provided a private opinion regarding his sleep apnea in April 2015. It was opined that the Veteran’s sleep apnea is secondary to his service-connected cervical degenerative disc disease. The rationale was that his multi-level degenerative changes would affect the nerves that control his diaphragm which contributes directly to his sleep apnea. The Board finds that an opinion should be obtained by a neurologist to address the secondary service connection theory of entitlement raised by the record. 2.Entitlement to service connection for a right elbow condition and a right thumb condition. The Veteran filed an application for service connection for both a right elbow and a right thumb condition in January 2014. At the time, the Veteran complained of pain in his right elbow and right thumb for several months. In February 2014, the Veteran indicated that he did not have any gout symptoms, unless his right elbow and right thumb pain were related to his gout, but he was not sure if they were. However, in June 2014, the Veteran was reassured by his physician that his elbow and thumb pain were possibly related to either his gouty arthritis or osteoarthritis. The Veteran was service connected for gout of his right great toe, effective October 2012, evaluated at 0 percent. Despite his service connection for gout, and a potential medical link between his gout and elbow and thumb pain, the Veteran was not given a VA examination for either condition. Instead, the RO denied service connection for a scar on the Veteran’s right thumb and for lateral epicondylitis of the right elbow. In his notice of disagreement, the Veteran made clear that his right thumb was incorrectly evaluated for a scar. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). A VA medical examination should be provided when (1) there is competent evidence of persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent or recurrent symptoms may be associated with service, and (4) insufficient competent medical evidence on file. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran’s lay statements of right elbow and thumb pain indicate a current disability. Moreover, the medical evidence indicates that the elbow and thumb pain could be related to the Veteran’s already service-connected gout. Accordingly, the claim must be remanded so that a VA examination can be provided for the Veteran’s right elbow and right thumb. 3. Entitlement to an initial compensable rating for gout of the right big toe. As noted above, the Veteran was service connected for gout of his right great toe, effective October 2012, evaluated at 0 percent. The RO has since rated the Veteran’s gout under Diagnostic Code (DC) 5282, which evaluates hammer toe. However, the Veteran has not been diagnosed with hammer toe and has instead been diagnosed with and service connected for gout, specifically of his great right toe. The DC for gout is 5017 and 38 C.F.R. § 4.71a explains that DC 5017 should be rated under DC 5002, or rheumatoid arthritis (atrophic) as an active process. In order to be rated at the lowest rating of 20 percent under DC 5002, the Veteran must show one or two exacerbations a year in a well-established diagnosis. The record does not currently show at least one exacerbation per year, but does show at least two gout flare-ups of the right great toe following diagnosis in March 2015 and July 2017. Nevertheless, as explained above, the Veteran’s right elbow and right thumb pain may also be gout related, and the record shows complaints of pain related to those joints in July 2013, February 2014, and June 2014. Accordingly, the Veteran’s claim for an initial compensable rating for gout must be remanded along with his right elbow and right thumb pain in order to determine whether these joints pains are also related to his gout. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to the October 2014 VA examination by a neurologist (M.D.) with respect to the claim of entitlement to service connection for obstructive sleep apnea (the examination report should indicate that the file was reviewed). The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that obstructive sleep apnea was either (i) caused by, or (ii) aggravated by, the Veteran's service-connected cervical degenerative disc disease. The examiner must consider the April 2015 opinion that the Veteran’s multi-level degenerative changes would affect the nerves that control his diaphragm which contributes directly to his sleep apnea. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right elbow condition. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. All tests and studies, deemed necessary, including any imaging, should be conducted. The examiner should answer the following questions: (a.) Does the Veteran have a current diagnosis for his right elbow condition? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right elbow condition began in (or is related to) his time in service? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right elbow condition was caused by his service-connected gout? (d.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s right elbow condition was aggravated (worsened beyond its natural progression) by the Veteran’s service connected gout? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right elbow condition by the gout. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his right thumb condition. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. All tests and studies, deemed necessary, including any imaging, should be conducted. The examiner should answer the following questions: (a.) Does the Veteran have a current diagnosis for his right thumb condition? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right thumb condition began in (or is related to) his time in service? (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right thumb condition is caused by his service-connected gout? (d.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s right thumb condition was aggravated (worsened beyond its natural progression) by the Veteran’s service connected gout? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right thumb condition by the gout. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Following the additional VA examinations consider the Veteran’s gout under Diagnostic Code 5002. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel