Citation Nr: 18153377 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-03 834A DATE: November 27, 2018 ORDER 1. The appeal of the issue of entitlement to service connection for scarring above right eye is dismissed. 2. Entitlement to service connection for a right arm/shoulder disability is denied. 3. Entitlement to service connection for a right knee disability is denied. REMANDED 4. Entitlement to service connection for hypertension is remanded. 5. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Regional Office (RO) issued a Statement of the Case (SOC) in February 2015 and the Veteran did not file a timely Substantive Appeal (VA Form 9) as to the issue of entitlement to service connection for scarring above right eye. 2. The Veteran does not have a current diagnosis of a right arm/shoulder disability. 3. The Veteran does not have a current diagnosis of a right knee disability. CONCLUSIONS OF LAW 1. The criteria for filing a formal appeal for entitlement to service connection for scarring above right eye have not been met. 38 C.F.R. §§ 20.200, 20.202 (2017). 2. The criteria for service connection for a right arm/shoulder disability have not been met 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a right knee disability have not been met 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to May 2002, and from October 2004 to December 2005, with additional reserve service. 1. Entitlement to service connection for scarring above right eye. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal consists of a timely filed Notice of Disagreement, and after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2017). A Substantive Appeal consists of a properly completed VA Form 9 (Appeal to the Board of Veterans’ Appeals) or correspondence containing the necessary information. 38 C.F.R. § 20.202 (2017). In February 2015, the RO issued a statement of the case which addressed the issue. The Veteran did not thereafter file a VA Form 9 or any other substantive appeal of that issue. The Veteran filed a substantive appeal in February 2015; however, it was before the issuance of the SOC for entitlement to service connection for scarring above right eye. The Veteran indicated that he was appealing only the issues of entitlement to service connection for (1) traumatic brain injury (TBI); (2) hypertension; (3) right knee disability; and (4) right arm/shoulder disability. Therefore, an appeal does not exist on the issue of entitlement to service connection for scarring above right eye. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence, which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right arm/shoulder disability. The Veteran asserts that service connection for a right arm/shoulder disability is warranted because it was incurred in, caused by, or otherwise related to his military service. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of a right arm/shoulder disability, therefore service connection is not warranted. The Veteran asserts that he has a current diagnosis of a right arm/shoulder disability, however, lay assertions do not constitute a competent clinical diagnosis of a right arm/shoulder disability. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran has not offered competent medical evidence in support of his assertion that he has a current diagnosis of a right arm/shoulder disability or evidence of functional impairment involving the right arm or shoulder. In the absence of a qualifying current diagnosis for a right arm/shoulder disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The preponderance of the evidence is against the claim of service connection for a right arm/shoulder disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a right knee disability. The Veteran asserts that service connection for a right knee disability is warranted because it was incurred in, caused by, or otherwise related to his military service. The Board finds that service connection for a right knee disability is not warranted because the preponderance of the evidence is against a finding of a current right knee disability. The Veteran asserts that he has a current diagnosis of a right knee disability, however, lay assertions do not constitute a competent clinical diagnosis of a right knee disability. See 38 C.F.R. § 3.159(a)(1). The Veteran has not offered competent medical evidence in support of his assertion that he has a current diagnosis of a right knee disability or evidence of functional impairment involving the right knee. In the absence of a qualifying current diagnosis for a right knee disability, service connection cannot be established. See Brammer, 3 Vet. App. 223. The preponderance of the evidence is against the claim of service connection for a right knee disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to service connection for hypertension is remanded. A November 2012 VA examination report for hypertension reflects the Veteran’s report that he was first diagnosed with hypertension in approximately 2007 or 2008. The Veteran stated that he was first placed on anti-hypertensive medications in 2007 or 2008. The examiner noted that the private treatment records documenting this were not found in the claims folder. After a review of the claims file, the Board finds that the evidence does not show that VA attempted to obtain these private medical records and such records have not been associated with the claims file. The omission of potentially relevant records necessitates that the claim must be returned for additional development. 5. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. The Veteran contends that he experienced a traumatic brain injury (TBI) while in service, to include from improvised explosive devices (IEDs) and mortar explosions. See September 2012 VA 21-4138 Statement in Support of Claim. In an October 2013 VA medical record, the Veteran underwent a TBI screening. The Veteran reported that he experienced a blast or explosion from IED, rocket propelled grenade (RPG), land mind, grenade, etc. The Veteran stated that he had experienced losing consciousness/ “knocked out” and concussion immediately after. The Veteran also reported sleep problems following the incident, and the medical professional indicated a positive TBI screen was discussed with the Veteran, however, the Veteran refused further evaluation. In a January 2014 VA initial posttraumatic stress disorder (PTSD) examination report, the examiner noted that the Veteran was positive for TBI screening, however, there was no formal diagnosis. The examiner answered “no,” when asked if the Veteran had a diagnosis of TBI. A June 2015 private medical record reflects a computed tomography (CT) scan of the head and a history of facial droop. The medical professional made an impression of evolving bilateral cortical and subcortical infarcts, possibly subacute in age; no mass effects or midline shift; and no intracranial hemorrhage. It was also noted that “further characterization with magnetic resonance imaging (MRI) could be helpful.” Given the positive TBI screen, a CT scan following a history of facial droop, and indication that further MRI would be helpful, the Board finds that a VA initial TBI examination is warranted to determine the nature, extent and etiology of the Veteran’s claimed residuals of TBI. The matter is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding VA or private treatment records that he wishes VA to obtain, to include private medical records for treatment of hypertension in 2007 or 2008 referenced in the November 2012 VA examination report. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 2. Schedule the Veteran for a TBI examination to determine the nature, extent and etiology, to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon). Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. The VA examiner’s attention is drawn to the following: • The Veteran served on active duty from January 2002 to May 2002, and from October 2004 to December 2005, with service in Iraq from December 2004 to November 2005. • The Veteran asserts that he experienced a TBI while in service, to include from explosions from improvised explosive devices (IEDs), mortars, rocket propelled grenades (RPGs), land mind, grenade, etc. The Veteran stated that he had experienced losing consciousness/ “knocked out” and concussion immediately after, and had sleep problems as a result. See 1) VBMS entry with document type, “VA 21-4138 Statement in Support of Claim,” receipt date 09/21/2012; and 2) VBMS entry with document type, “VA Examination,” receipt date 01/31/2014, on page 3. • In a Report of Medical History that the Veteran completed on May 19, 2006, he specifically denied a history of “a head injury” and “a period of unconsciousness or concussion.” See VBMS entry with document type, “STRs – Medical,” receipt date 11/18/2011, on pages 52-53, item # 15c & 15g (they are difficult to read, but if enlarged to 125%, it is easily readable). There, he also denied a history of dizziness or fainting spells, frequent or severe headache, and frequent trouble sleeping (item #s 15a, 15b, & 17d). • In an October 2013 VA medical record, the Veteran underwent a TBI screening and reported that he experienced a blast or explosion from an IED, RPG, land mind, grenade, etc. The Veteran stated that he had experienced losing consciousness/ “knocked out” and concussion immediately after. The Veteran also reported sleep problems following the incident. The medical professional indicated a positive TBI screen was discussed with the Veteran, however, the Veteran refused further evaluation. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 11/13/2013, on pages 35-36. • Of record is a June 2015 private medical record that reflects a CT scan of the head and a history of facial droop. An impression of evolving bilateral cortical and subcortical infarcts, possibly subacute in age; no mass effects or midline shift; and no intracranial hemorrhage. “Further characterization with MRI could be helpful,” was noted by the medical professional. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” with #4 in the subject line, receipt date 10/13/2015, on pages 4-5. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: a) Does the Veteran have any currently diagnosed TBI residuals? b) If residuals of a TBI are diagnosed, it at least as likely as not (50 percent or greater likelihood) that they were incurred in service, caused by, or otherwise related to service? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After all available evidence has been associated with the record; the AOJ should review the evidence and determine if further development is warranted. The AOJ should take any additional development as deemed necessary. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel