Citation Nr: 18152257 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 14-38 486A DATE: November 21, 2018 ORDER Entitlement to service connection of a back injury, for purposes of accrued benefits, is denied. Entitlement to service connection of a right knee injury, for purposes of accrued benefits, is denied. Entitlement to service connection of a forehead scar for purposes of accrued benefits, is denied. Entitlement to service connection of jungle rot for purposes of accrued benefits, is denied. Entitlement to service connection for a traumatic brain injury (TBI), for purposes of accrued benefits, is denied. Entitlement to service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder, and diagnosed as depressive disorder, for purposes of accrued benefits, is granted. REMANDED Entitlement to service connection of a right shoulder injury, for purposes of accrued benefits, is remanded. Entitlement to service connection of bilateral hearing loss, for purposes of accrued benefits, is remanded. FINDINGS OF FACT 1. The Veteran did not have a presently diagnosed back injury prior to his death; his pre-service back pain was not worsened by active service. 2. The Veteran did not have a presently diagnosed right knee injury prior ot his death; his pre-service right knee pain was not worsened by active service. 3. The Veteran did not have a forehead scar prior to his death. 4. The Veteran did not have a diagnosis of jungle rot prior to his death. 5. The Veteran did not have any compensable residuals of a TBI prior to his death. 6. The Veteran did not have a diagnosis of PTSD prior to his death; his diagnosed depressive disorder was at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, for purposes of accrued benefits, were not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. 2. The criteria for service connection for a right knee disability, for purposes of accrued benefits, were not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. 3. The criteria for service connection for a forehead scar, for purposes of accrued benefits, were not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 4. The criteria for service connection for jungle rot, for purposes of accrued benefits, were not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 5. The criteria for service connection for residuals of a TBI, for purposes of accrued benefits, were not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 6. The criteria for service connection for service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder, and diagnosed as depressive disorder, for purposes of accrued benefits, are met. 38 U.S.C. §§ 1110, 1111, 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 March 1968 to December 1969. The Veteran died in February 2018. The appellant is the Veteran’s surviving spouse, who has successfully substituted as appellant on all appeals pending at the time of his death. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In January 2018, prior to his death, the Veteran withdrew his prior requests for a hearing before a Veterans Law Judge. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a condition which clearly and unmistakably preexisted service, where there is a finding that the disability increased during service, and that increase was not due to the natural progression of the disease. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306(a). 1. Entitlement to service connection of a back injury 2. Entitlement to service connection of a right knee injury Prior to his death, the Veteran sought service connection of a back injury and a right knee injury. The Board finds those claims should be denied. A review of the Veteran’s available VA treatment records show that in June 2012, he requested an evaluation for a back injury. However, there is no other evidence of any back symptoms or diagnoses. A September 2014 letter from his private physician states that he suffered from chronic back pain. Although that letter states that he has osteoarthritis and suffers with joint pain at multiple sites, it did not attribute a diagnosis of arthritis to his back, merely pain. Likewise, and October 2016 VA treatment record noted a complaint of chronic right knee pain, although the Veteran declined a plan to reach any associated health goals and denied that his knee made it difficult to care for his heath. In May of 2016, he was noted to have earlier complaints of knee pain, but denied any pain at that time. A March 2012 statement from a private physician noted chronic knee pain, although it did not give a diagnosis or pathology for that knee pain. Considering the above, the Board finds that the claim must be denied because the record does not show that the Veteran had either a right knee disability or a back injury for which service connection may be granted. While the Board does not discount the Veteran’s reported pain, the Board finds that the evidence cannot support a finding that his pain is a “disability” for VA purposes. First, the Board observes that, despite evidence of pain in the record, there is no actual diagnosed pathology for either the right knee or back which would account for his pain. Nonetheless, the Board does note recent development from the Court of Appeals for Veterans Claims (Court) has held 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 held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F. 3d 1356, 1363-64 (Fed. Cir. 2018). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Unfortunately, in this case, the Board must conclude that the Veteran’s right knee and back pain did not rise to the level of functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating that “pain must affect some aspect of the normal working movements of the body... in order to constitute functional loss” (internal quotation marks omitted)). Here, the record does not provide the type of evidence the Board would need to evaluate to determine functional loss, for example, compensable loss of range of motion or instability. As recently as October 2016 he denied that his knee pain interfered with his ability to care for his health. Therefore, to the extent that his knee and back pain did not result in compensable functional impairment, absent a diagnosed pathology to account for that pain, it does not qualify as a present “disability” for VA benefits purposes. The Board further observes that, even presuming a present diagnosis, of which there is none, there is no evidence of incident, illness or injury in the record to which his present pain could be linked. The Veteran’s pre-induction examination indicated that he experienced recurrent back pain and also stated that his “right leg is bad.” Nonetheless, his service treatment records did not indicate any treatment for right knee or back symptoms during his period of active service. Upon separation from service, he denied any back or knee issues. To the extent that he did disclose right knee and back issues prior to service, it would need to be shown that those issues worsened beyond normal progression in service. Here, the Board further notes that there were no indications of issue in the service treatment records throughout service, and he explicitly denied any knee or back pain or other symptoms upon separation. The Board does acknowledge the private physician’s brief March 2012 opinion that his knee may have been aggravated by service, but finds it of limited probative value in this matter, particularly, as it purports to have reviewed the Veteran’s medical records, but does not discuss the lack of treatment for such pain in service, and particularly because it does not provide any evidence of a diagnosed pathology or compensable functional loss to account for his pain. In sum, the Board finds that the claims of service connection for a right knee disability and back injury must be denied as failing the first criteria of service connection, namely, a present disability, and the second criteria, an in-service incident, illness or injury to which any pain may be linked. There is no indication in the record that any pain was aggravated beyond natural progression in service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection of a forehead scar 4. Entitlement to service connection of jungle rot 5. Entitlement to service connection for a traumatic brain injury (TBI) Prior to his death, the Veteran sought service connection of a forehead scar, jungle rot of the hands, and residuals of a TBI. The Board finds that the claims should be denied. A review of the Veteran’s VA and private treatment records do not document any diagnosis or pathology associated with the issues claimed. In October 2016, a VA skin risk screening found no history of any skin disability or scar. In June 2012 he presented for a TBI consult. At the time he reported being hit in the head by a projectile in the Republic of Vietnam, sustaining a laceration to the forehead, losing consciousness for a few seconds. When he regained consciousness, he sought medical attention in the field, which included butterfly stitches to the laceration, then returned to duty (the Board notes that the Veteran has confirmed combat experience, and therefore such an incident would not be expected to appear in his service treatment records). He denied any symptoms after that event. He denied any present symptoms with the exception of irritability and depression, and slowed thinking (the Board will address those symptoms in the below claim for an acquired psychiatric disability). The examiner concluded that he likely sustained a mild TBI during service, but that he did not have any present complaints, residuals or symptoms. In May 2014, during a primary care annual screening he denied any disability associated with a TBI. In light of the above, the Board must deny the claims as the Veteran did not have a present disability associated with his claim. There is no evidence in the record, either present or in his service treatment records of a skin disability such as jungle rot. To the extent that an examiner found that he likely sustained a mild TBI in service, there are no present symptoms or pathologies associated with that incident for which service connection may be granted. Finally, there is simply no evidence of a scar or laceration anywhere in the medical record, to include his service treatment records and separation examination. As such, the Board must conclude that these claims fail the first criteria of service connection, namely a present disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 6. Entitlement to service connection of an acquired psychiatric disability, claimed as posttraumatic stress disorder, and diagnosed as unspecified depressive disorder Prior to his death, the Veteran sought service connection for PTSD. As is discussed in more detail below, the Board finds that the claim for PTSD should be denied, but the associated claim for depression should be granted. The Court has held that a claim of service connection for any psychiatric disability, particularly, PTSD, also includes any current psychiatric disorder that is reasonably encompassed by the reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, although the Veteran filed a claim for PTSD, the Board will also consider any other diagnosis which may result from his reported symptoms. At the outset, the Board notes that the Veteran served in the Republic of Vietnam and received multiple citations for action in combat, to include the Bronze Star and the Vietnam Cross of Gallantry. The Veteran has reported several specific stressors in service, which VA has confirmed. In connection with his claim, the Veteran was afforded a PTSD examination in May 2014. The examiner took a detailed history from the Veteran and conducted a thorough examination. The examiner then concluded that, although the Veteran reported stressors to meet the PTSD stressor criteria, he did not endorse full symptoms to meet the criteria for a diagnosis under the Diagnostic and Statistical Manual 5th Edition (DSM-5), as required for a grant of service connection. Nonetheless, he did meet the diagnostic criteria for depressive disorder. The examiner concluded that depression is often multifactorial in etiology, and the Veteran’s military experiences were at least as likely as not to be a contributing factor to his reported history of depression. The Board finds this opinion to be persuasive. It was rendered following a thorough examination of the Veteran, and in contemplation of his medical history and combat experience. Further, the Board has reviewed the available evidence and found no medical records or opinions which would contradict this conclusion. Therefore, the Board finds that the claim for depressive disorder should be granted. To the extent that the claim for PTSD cannot be granted, the Board notes that the record does not support such a diagnosis, but the claim is granted nonetheless under the separate diagnosis of depressive disorder, which accounts for the Veteran’s symptoms and is to be rated under the same diagnostic criteria. REASONS FOR REMAND 1. Entitlement to service connection of a right shoulder injury is remanded. Prior to his death, the Veteran sought service connection for a right shoulder injury, which he asserts occurred during a fall while stationed in the Republic of Vietnam. Available VA treatment records show that in July 2013 he underwent an MRI which showed multiple pathologies resulting in severe degenerative changes of the shoulder. To the extent that he asserted he injured his shoulder in service, such an injury is not recorded in his service treatment records. Nonetheless, the Veteran has confirmed combat experience and was competent to report such an incident. See 38 U.S.C. § 1154(b); 38 C.F.R. §3.304(d) (holding that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation). In light of this, the Board would request that a medical opinion be obtained which addresses any possible causation of the Veteran’s shoulder disability by his combat experience. 2. Entitlement to service connection of bilateral hearing loss is remanded. The Veteran was afforded a VA examination in connection with his bilateral hearing loss claim in January 2012. The examiner in 2012 concluded that the Veteran’s hearing loss could not be related to service because the Veteran’s hearing acuity did not change significantly between 1965 and 1969, and showed normal hearing upon separation. An opinion which relies exclusively on normal hearing at separation is inadequate because “section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.... Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the Board would request an addendum opinion which addresses the Veteran’s conceded acoustic trauma in service, particularly his combat experience. The matter is REMANDED for the following action: 1. Invite the appellant to submit any additional evidence in support of the claim remaining on appeal. 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s right shoulder disability is at least as likely as not related to his combat experience, particularly to his reported fall on his shoulder in 1969.   3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to his conceded in-service acoustic trauma, particularly his combat experience. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel