Citation Nr: 18151564 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-40 991A DATE: November 19, 2018 ORDER Service connection for a lung disorder, to include chronic obstructive pulmonary disease (COPD) is denied. Service connection for pes planus (bilateral flat feet) is denied. Service connection for pseudofolliculitis barbae (PFB) is granted. REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression is remanded. The claim of entitlement to service connection for a right eye disability is remanded. FINDINGS OF FACT 1. There is no evidence of a lung disorder in service and no competent evidence linking the Veteran’s current COPD with his period of service. 2. The competent evidence shows that the Veteran’s pes planus existed prior to service and did not increase in severity during service. 3. The Veteran’s PFB had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lung disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for PFB have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) from July 2014 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. With regard to the acquired psychiatric disorder issue, a claim for service connection for a psychiatric disability is deemed to encompass all psychiatric diagnoses reasonably presented in the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). While the Veteran submitted a claim solely for PTSD, a review of the record shows that the Veteran has been diagnosed with depression, not PTSD. Accordingly, the Veteran’s psychiatric disability claim has been properly characterized to include depression. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Lung disorder The Veteran alleges that he has a lung disorder which is related to his military service. Unfortunately, he has not explained why he believes that his lung disorder is related to his service. While the Veteran’s service treatment records (STRs) show that he was treated for an upper respiratory infection in December 1985, they are negative for a chronic lung disorder. Significantly, a March 1987 examination shows normal “lungs and chest.” Post-service treatment records from the Social Security Administration (SSA) show that the Veteran was assessed with possible ongoing obstructive airway disease in February 2002 and possible underlying hyperactive airway syndrome in March 2002. In January 2003 he was diagnosed with moderately severe obstructive airway disease consistent with bronchial asthma. A March 2009 private treatment record shows that the Veteran was exposed to inhaled chemicals while working four years earlier and that he was smoking one pack of cigarettes per week. VA treatment records show a diagnosis of COPD as early as February 2011 and, in June 2011, he was awarded disability benefits from SSA. Upon review of the evidence, the Board finds that service connection for a lung disorder is not warranted. While the Veteran contends that his lung disorder is related to his military service, he has not explained why he believes that it is related to his service. Significantly, his service treatment records are negative for any complaints, treatment, or findings referable to a chronic lung disorder. Furthermore, there is no evidence of chronic lung problems until February 2002, approximately 14 years after his discharge from military service, the Veteran was not diagnosed with a lung disorder until 2003, approximately 15 years after his discharge from military service. In fact, the evidence suggests that the Veteran’s lung disorder is due to post-service exposure to inhaled chemicals and/or to tobacco use. In addition, the evidence does not show, nor does the Veteran allege, that he continuously manifested symptoms related to his claimed disability after service. In this context, the Board notes that the passage of several years between discharge from active service and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 36 (1992). Moreover, there is no medical opinion linking the Veteran’s lung disorder to his military service and the Veteran’s mere conclusory generalized lay statement that a service event caused the claimant’s current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Veteran’s claim for service connection for a lung disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Pes planus Upon pre-induction examination in May 1979, it was noted that the Veteran had mild pes planus and, in a May 1979 report of medical history the Veteran denied “foot trouble.” STRs show occasional complaints regarding the Veteran’s feet. Specifically, June and July 1979 STRs show complaints of painful feet as well as a diagnosis of hallux rigidus. A March 1987 examination shows normal feet. For purposes of service connection pursuant to § 1110 and § 1131, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § § 1111 and 1132. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. The burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. The Veteran submitted an original claim for service connection for pes planus in September 2014. He was afforded a VA examination in March 2015 and the examiner continued a diagnosis of pes planus (i.e., flat feet). Significantly, the examiner opined that the Veteran’s pes planus clearly and unmistakably existed prior to his service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale for this opinion, the examiner noted that the Veteran was noted to have mild pes planus prior to service and was seen twice for foot pain while on active duty. The examiner also noted that the current examination revealed mild symptoms and only moderate progression of pes planus, compatible with his age and morbid obesity. The May 1979 pre-induction examination documented a pre-service diagnosis of mild pes planus. As such, the Board finds that the Veteran’s pes planus preexisted military service. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board further finds that the Veteran’s pes planus was not aggravated by military service. The Board acknowledges that the STRs reflect histories of and treatment for symptoms suggestive of pes planus during service. However, the fact that the Veteran exhibited symptoms in service, in and of itself, is not sufficient to show that the underlying condition, as contrasted to the symptoms, worsened. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the evidence does not suggest an increase in the Veteran’s pes planus during military service. The Board acknowledges that the Veteran has alleged that his pes planus was aggravated during military service. Where lay statements are “vague” or “inconsistent with the evidence as a whole,” they may be discounted by VA. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010). In the present case, the Veteran’s statements of aggravation of his pes planus during military service are vague, in that he has reported an increase in his pes planus during military service but has not cited to any specific incidents or otherwise provided an explanation as to specifically how his asthma permanently worsened during and after service. His statements are also inconsistent with the evidence as a whole as the Veteran currently has moderate pes planus just as he had prior to service. Accordingly, the lay statements concerning the aggravation of the Veteran’s pes planus during military service do not constitute competent or credible medical evidence and as such they are not probative. In contrast, the March 2015 VA feet examiner’s opinion that the Veteran’s pre-existing pes planus was not aggravated by his military service is competent and highly probative; significantly, the examiner noted that the Veteran was found to have mild pes planus prior to service and the current examination revealed mild symptoms with only moderate progression of pes planus, compatible with his age and morbid obesity. As such, there is no basis for service connection for pes planus on an aggravation basis as there is no indication of an increase in disability during the Veteran’s military service. 3. PFB The Veteran contends that he developed PFB while on active duty and that he has continued to experience these disability since his separation. STRs confirm that the Veteran was treated for PFB during his service. Specifically, in October 1979 and February 1984, the Veteran was noted to have moderate PFB and, in July 1985, the Veteran was put on a shaving profile due to his PFB. Post-service VA treatment records show a diagnosis of PFB as early as October 2014. What remains to be established is whether there is a nexus between the diagnosed PFB and the Veteran’s service. The Veteran has not been afforded a VA examination to determine the etiology of his PFB. However, the Veteran contends that his PFB has continued since his military service. This evidence of continuity of symptomatology tends to establish that the Veteran’s current condition is the same condition that was first observed in service. See Lynch v. Ne. Reg’l Commuter R.R. Corp., 700 F.3d 906, 915 (7th Cir. 2012) (“[E]xpert testimony may be necessary where some special expertise is necessary to draw a causal inference because of its esoteric nature, but that in general the causal sequence can be inferred from circumstantial evidence, expert testimony, or common knowledge.”); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Significantly, the record does not contain any evidence indicating that the Veteran’s PFB is not related to his active duty service. As a layperson, the Veteran is competent to testify that he has been experiencing an ongoing skin disability. His testimony has been very detailed and established the history of his symptoms since service. This evidence of continuity of symptomatology tends to establish that the Veteran’s current condition is the same condition that was first observed in service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s PFB is related to active service. Therefore, service connection is granted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Acquired psychiatric disorder, to include PTSD and depression The Veteran contends that service connection is warranted for an acquired psychiatric disorder. Specifically, he contends that his psychiatric problems are due to a stressful experience during his service when a fellow soldier was killed in a mountain climbing accident during an off-weekend. In a March 2016 affidavit, the Veteran wrote that he experienced night terrors two to three times per week relating to the death of his friend in service. A review of the Veteran’s service treatment records is negative for a psychiatric disorder. Significantly, a March 1987 examination shows a normal psychiatric system. Post-service VA treatment records show that the Veteran was treated for depression as early as January 1998. At that time, it was noted that the Veteran had experienced depression for the past three years, possibly secondary to drug use. The Veteran submitted an initial claim for service connection for PTSD in February 2013. In connection with this claim, updated VA treatment records dated through May 2018 were obtained. Significantly, April and June 2013 VA treatment records note a diagnosis of major depressive disorder, recurrent mild and an August 2013 VA treatment record notes a diagnosis of major depressive disorder, in remission. Also, depression screens in October 2014 and January 2018 were reportedly negative. The Veteran has not yet been afforded a VA examination for the purpose of determining whether a current acquired psychiatric disorder may be related to his military service. The medical documentation of psychiatric problems since at least January 1998 along with the Veteran’s allegation of psychiatric problems since the in-service death of a fellow service member are sufficient to trigger the duty on the part of VA to provide an examination as to the acquired psychiatric disorder claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the Veteran should be afforded a VA examination so as to determine whether he currently has an acquired psychiatric disorder and, if so, the nature and etiology of such disorder. 2. Right eye disability The Veteran contends that service connection is warranted for a right eye disability. Specifically, he contends that he experienced trauma to his right eye during service and suffers from a right eye disability as a result of this trauma. Service treatment records confirm that the Veteran experienced right eye trauma in service. Specifically, an August 1986 service treatment record notes that the Veteran had an object in his right eye. A subsequent March 1987 examination noted mild pterygium and normal vision. The Veteran submitted an initial claim for service connection for right eye trauma in February 2013. VA treatment records include a May 2013 eye consultation where the Veteran was diagnosed with suspected ocular hypertension/glaucoma as well as refractive error of the right eye. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractive errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990). The Veteran has not yet been afforded a VA examination for the purpose of determining whether a current right eye disorder may be related to his military service. The medical documentation of an in-service right eye trauma, the medical evidence showing current right eye disability, along with the Veteran’s allegation of right eye problems since his in-service right eye trauma are sufficient to trigger the duty on the part of VA to provide an examination as to the eye disorder claim. McLendon, 20 Vet. App. at 79. Therefore, the Veteran should be afforded a VA examination so as to determine whether he currently has a right eye disorder and, if so, the nature and etiology of such disorder. Finally, with regard to both remanded issues, the Veteran should be provided with an opportunity to identify any VA or non-VA healthcare provider who has treated him for his claimed psychiatric and right eye disorders since service. Also, the Board notes that there are likely outstanding VA treatment records as the Veteran has consistently sought treatment at VA since January 1998 but the most recent VA medical records in the claims file are dated in May 2018. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Afford the Veteran an opportunity to identify any healthcare provider who has treated him for his claimed acquired psychiatric and/or right eye disorders. After obtaining any necessary authorization from the Veteran, obtain all identified records, to include updated VA treatment records dated from May 2018 to the present. 2. After obtaining any outstanding records, schedule the Veteran for a VA psychiatric examination by an appropriate medical professional to determine the nature and etiology of his claimed acquired psychiatric disorder. The claims file should be provided. (A) The examiner should identify all of the Veteran’s current acquired psychiatric disorders. (i) If a diagnosis of PTSD is made, then the examiner should specify whether his symptoms are related to the claimed stressor. (ii) If the examination results in a psychiatric diagnosis other than PTSD, then the examiner should opine whether any non-PTSD psychiatric disorder, if diagnosed, is at least as likely as not (i.e., a 50 percent or greater probability) related to active service or any incident of service. (B) The examiner should further consider whether the Veteran developed psychoses within one year of his separation from military service. In this regard, the examiner should opine as to whether it is at least as likely as not that the Veteran had psychoses of within one year after March 11, 1988, his date of separation from active service, and, if so, to describe the manifestations. The examiner is asked to address the Veteran’s reported history of psychiatric problems in service as well as the post-service January 1988 VA treatment record showing a diagnosis of depression possibly secondary to drug use with an onset three years earlier. The rationale for any opinion offered should be provided. 3. After obtaining any outstanding records, schedule the Veteran for a VA eye examination by an appropriate medical professional to determine the nature and etiology of his claimed right eye disorder. The claims file should be provided. (A) The examiner should identify all current right eye disorders found to be present. (B) For each diagnosis of a refractive error of the eye, the examiner should offer an opinion as to whether it is at least as likely as not there was additional disability due to disease or injury superimposed upon such defect during service. If so, please identify the additional disability. (C) For each diagnosis of a non-refractive error of the eye, the examiner should offer an opinion as to whether it is at least as likely as not that such is related to the Veteran’s military service, to include his in-service right eye trauma discussed above. In offering any opinion, the examiner must consider the Veteran’s lay statements regarding the incurrence of his claimed right eye disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided.   4. Readjudicate the claim. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel