Citation Nr: 18150209 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-25 403 DATE: November 14, 2018 ORDER Service connection for low back pain is denied. Service connection for popliteal thrombosis of the right leg is denied. Service connection for Barrett's esophagus is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder, is granted. REMANDED Service connection for tinnitus is remanded. Service connection for primary biliary cirrhosis is remanded. FINDINGS OF FACT 1. 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 for a low back disorder. His pain has not been shown to reach the level of functional impairment of earning capacity. 2. The preponderance of the evidence is against finding that popliteal thrombosis of the right leg began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that Barrett’s esophagus began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The competent and probative evidence is at least in equipoise as to whether an acquired psychiatric disorder, to include PTSD, had its onset in or is otherwise related to the Veteran’s period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for popliteal thrombosis of the right leg are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for Barrett’s esophagus are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to October 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record contains diagnoses of PTSD and general anxiety disorder. Accordingly, the claim for PTSD has been broadened and recharacterized as a claim for service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Establishing service connection for PTSD claims requires three elements: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304; Cohen v. Brown, 10 Vet. App. 128, 139 (1997). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Service connection for low back pain The Veteran contends that he hurt his back in Vietnam while lifting ammunition boxes. 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 low back disorder 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). A review of the competent evidence of record does not show any diagnoses or treatment for any disability associated with the low back. There was one complaint of mild lower backache when he stood for too long in October 2012. During medical appointments in January 2012, February and October 2013, April and August 2014, he denied any backache. Service treatment records are absent for any diagnoses or treatment for the back. A separation examination in October 1969 documents a normal spine. He also denied back trouble of any kind in a report of medical history at separation. The Board notes that the Veteran has not been provided with a VA examination for his low back pain. However, the duty to assist is not invoked where “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2), (d)(1). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Courts have held that while there must be “medically competent” evidence of a current disability, “medically competent” evidence is not required to indicate that the current disability may be associated with service. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010); Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as this would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Consequently, the Board finds that a VA examination is not warranted for the Veteran’s claim for service connection for low back pain. McLendon v. Nicholson, 20 Vet. Vet. App. 79, 83 (2006). Moreover, the Board finds that the Veteran’s low back pain does not constitute a disability. In this regard, there is no clinical diagnosis for low back and he has not submitted evidence nor does the record show that his pain resulted in functional loss or functional impairment of earning capacity. Saunders v. Wilkie, 866 F.3d 1356 (Fed. Cir. 2018); Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (“Pain in... a particular joint may result in functional loss, but only if it limits the ability... of the body.” (internal quotation marks omitted)). In sum, the competent medical evidence does not show that the Veteran has a current diagnosis related to the claimed pain in his low back; therefore, service connection is not warranted and the claim must be denied. As such, the benefit of the doubt doctrine does not apply, and the claim is denied. 38 U.S.C. § 5107(b). 2. Service connection for popliteal thrombosis of the right leg 3. Service connection for Barrett's esophagus The Veteran contends that his popliteal thrombosis of the right leg and Barrett’s esophagus is due to his active duty service. The Veteran notes that he began having problems with the right leg a few years after 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 competent evidence of record shows that the Veteran has a history of a bypass to the artery of the right leg due to a popliteal artery thrombosis in 1975, approximately six years after separation. He also had a revascularization in about 2013. Medical records from VA also show a current diagnosis for Barrett’s esophagus, to include in December 2015. The Veteran has not indicated any particular in-service injury, event, or disease that is related to either disability. He has not reported that he had right leg artery problems prior to the bypass procedure in 1975. At that time, a notation shows that his popliteal artery occlusion was of unknown etiology. Regarding Barrett’s esophagus, it was diagnosed many years after service in 2014. Service treatment records are silent for complaint or treatments of the right leg or esophagus. The October 1969 separation examination fails to document any complaints, diagnoses, or treatment related to these disorders. In the clinical evaluation, there were no noted abnormalities concerning the esophagus or the right leg. After review of the evidence above, the Board concludes that, while the Veteran has a diagnosis of popliteal thrombosis of the right leg and Barrett’s esophagus, 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). While the Veteran believes disabilities are related to active service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred. The Board notes that the Veteran has not been provided with a VA examination for his popliteal thrombosis of the right leg and Barrett’s esophagus in this case. Indeed, the duty to assist is not invoked where “no reasonable possibility exists that such assistance would aid in substantiating the claim.” 38 U.S.C. § 5103A(a)(2), (d)(1). The act of filing a claim and simply stating the condition is related to service is not enough to trigger the duty to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Beyond lacking an indication of a relationship to service, as noted above, the record lacks evidence establishing an event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4). In sum, the Veteran has current disabilities, however, there were no in-service injuries or diseases during his active military service. As such, the Board finds that the preponderance of the evidence weighs against a finding for service connection for popliteal thrombosis of the right leg and Barrett’s esophagus. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102. 4. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and general anxiety disorder After review of the record, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include PTSD, are met. The Board acknowledges that there is competing evidence regarding whether the Veteran’s symptoms satisfy the criteria for a diagnosis of PTSD. See March 12, 2015 VA examination ; December 12, 2016 Medical Treatment Record. The 2015 VA examination report reflect that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5 per a physician. The 2016 private evaluation report notes that the Veteran likely minimized his PTSD symptoms at the 2015 VA examination. The evaluator, a licensed clinical social worker, indicated that they had met with the Veteran six times and set forth how the Veteran met the criteria for PTSD. The Board resolves the benefit of the doubt in favor of the Veteran on this material issue and finds the evidence to be in equipoise regarding a current diagnosis of PTSD. The Board also notes that the record contains a competent diagnosis of general anxiety disorder per the 2015 VA examination report. The Veteran’s DD-214 indicates that his military occupational specialty was as an ammunition specialist. For his service in Vietnam, he was awarded the Republic of Vietnam Campaign Medal and the National Defense Service Medal. At the March 2015 VA examination, the Veteran related a traumatic event that involved much noise and guns going off while he was working in the ammunition depot in Long Binh. The VA examiner indicated that this stressor met Criterion A (exposure to actual or threatened death or serious injury) for a diagnosis of PTSD and was related to the Veteran’s fear of hostile military or terrorist activity during service. The December 2016 private examiner also indicated that his stressors met the Criteria A for PTSD and that he was constantly afraid when he served in Vietnam. In this case, there is competent evidence of a diagnosis of PTSD by the December 2016 private examiner. The Board finds credible the Veteran’s reports of traumatic events in service consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a). A competent VA examiner has concluded that his stressors meet Criterion A for a diagnosis of PTSD and are related to the Veteran’s fear of hostile military or terrorist activity during service. Based on the above, and resolving all doubt in favor of the Veteran, the Board finds that an acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, is related to traumatic experiences in Vietnam. REASONS FOR REMAND 1. Service connection for tinnitus is remanded. 2. Service connection for primary biliary cirrhosis is remanded. In July 2018, the Veteran submitted additional evidence including medical records and a statement in regard to his claims for tinnitus and primary biliary cirrhosis. The Veteran’s representative specifically requested review of these records by the Agency of Original Jurisdiction (AOJ) prior to adjudication by the Board. Therefore, these issues are remanded for consideration of those records in the first instance by the AOJ. 38 C.F.R. §§ 19.31, 20.1304. The matters are REMANDED for the following action: Readjudicate the Veteran’s claims of tinnitus and primary biliary cirrhosis with consideration of all additional evidence associated with the claims file since the March 2016 statement of the case. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel