Citation Nr: 18155365 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-35 229 DATE: December 4, 2018 ORDER Service connection for tinnitus is granted. Service connection for a bilateral shoulder disorder is denied. Service connection for a bilateral knee disorder is denied. Service connection for tinea pedis is denied. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is denied. Service connection for bruxism is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to active duty service. 2. The Veteran does not have a current diagnosis of a bilateral shoulder disorder or pain resulting in functional impairment of earning capacity. 3. The Veteran does not have a current diagnosis of a bilateral knee disorder or pain resulting in functional impairment of earning capacity. 4. The Veteran does not have a current diagnosis of tinea pedis or pain resulting in functional impairment of earning capacity. 5. The Veteran does not have a current diagnosis of PTSD. 6. The Veteran’s psychiatric disorder, diagnosed as depressive disorder, was not shown in service or for many years thereafter, and is not otherwise related to active duty service. 7. The Veteran’s bruxism was not shown in service or for many years thereafter, and is not otherwise related to active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for a bilateral shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for tinea pedis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 5. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304. 6. The criteria for entitlement to service connection for as bruxism have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1971 to June 1978. This case is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of a Department of Veterans Affairs (VA) regional office. The Board acknowledges that the Veteran filed a claim of entitlement to service connection for a psychiatric disorder. However, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, as reflected herein, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the RO received new medical treatment records that were not previously considered in its last statement of the case. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file and/or are redundant and cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Additionally, the Board acknowledges the Veteran’s request for a VA examination for his shoulders, knees, and foot fungus disorders. However, given the absence of in-service evidence of chronic manifestations of these disorders, and no evidence of a current diagnosis of these disorders, a VA examination is not warranted. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, the available records and medical evidence are sufficient to make an adequate determination as to these claims. Service Connection 1. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is related to his exposure to weapons, artillery, and explosions, due to his military occupational specialty as an infantryman while engaging in active combat during Vietnam. 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. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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), 3.304, 3.307, 3.309. In this case, based on the evidence of record, the Board determines that service connection is warranted for the Veteran’s tinnitus. Specifically, VA has already conceded in-service noise exposure as the Veteran is service-connected for bilateral hearing loss. Further, the Board finds the Veteran’s statements regarding tinnitus to be competent and credible. Moreover, the August 2016 VA examiner determined that the Veteran’s tinnitus was related to service. Additionally, the Board also takes notice of the fact that the Veteran is service-connected for bilateral hearing loss and recognizes that tinnitus is a common symptom of nearly all ear disorders including sensorineural or noise-induced hearing loss. See The MERCK Manual, Sec. 7, Ch. 82, Approach to the Patient with Ear Problems; see also Fountain v. McDonald, 27 Vet. App. 258 (2015). As such, the Board finds that the evidence is at least in equipoise and service connection is warranted. 2. Entitlement to service connection for a bilateral shoulder disorder 3. Entitlement to service connection for a bilateral knee disorder 4. Entitlement to service connection for tinea pedis 5. Entitlement to service connection for an acquired psychiatric disorder, characterized as PTSD and depression 6. Entitlement to service connection for bruxism The Veteran asserts that his bilateral shoulder, bilateral knee, tinea pedis, bruxism, and psychiatric disorders are all related to active service. As a preliminary matter, the Board concludes that the Veteran does not have a current diagnosis of a bilateral shoulder disorder, tinea pedis, and a bilateral knee 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). Specifically, the Board finds that after a thorough reading of the evidence of record, the evidence does not reflect a current diagnosis related to these disorders. The Board acknowledges the Veteran’s assertions and belief that he has a bilateral shoulder disorder, tinea pedis, and a bilateral knee disorder; however, he is not competent to provide a diagnosis in this case. These issues are medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, to the extent the Veteran is competent to report shoulder and knee pain, the Board acknowledges the holding in the United States Court of Appeals for the Federal Circuit in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which indicates that pain can constitute a “disability” under 38 U.S.C. § 1110. However, there is no evidence, medical or otherwise, that is sufficient to demonstrate a disability for VA purposes. In fact, that Veteran has not specifically asserted that his pain causes any functional limitations. As such, the preponderance of the evidence is against a finding that the Veteran has a bilateral shoulder disorder, tinea pedis, and a bilateral knee disorder at any point during the time on appeal. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Similarly, the Board determines that the Veteran does not have a diagnosis of PTSD at any point during the period on appeal. Specifically, in order to clarify the nature of the Veteran’s psychiatric symptoms, the Veteran underwent a VA mental disorders examination in June 2014. After a thorough evaluation, the examiner determined that a diagnosis for PTSD is not warranted. In support, the examiner specifically noted that while the Veteran had certain psychiatric symptoms and an adequate stressor to support PTSD, his symptoms were nevertheless not of the requisite nature, severity, and frequency to establish a diagnosis of PTSD. See Brammer, 3 Vet. App. at 225. Further, the examiner also opined that the Veteran’s psychiatric symptoms were caused by his depressive disorder. Additionally, to the extent the medical evidence indicates symptoms and/or a diagnosis of PTSD, greater probative value is placed on the conclusions of the VA examiner’s determination that a diagnosis for this disorder is not warranted. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the unique probative value of opinions provided by VA mental health in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). Therefore, while the presence of some psychiatric symptoms was reported in the record, these symptoms alone without an underlying PTSD diagnosis are insufficient to establish service connection for PTSD. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). With respect to any psychiatric disorder, other than PTSD (diagnosed in June 2014 as depressive disorder), and bruxism, the Board concludes that while the Veteran has a current diagnosis of these disorders, the preponderance of the evidence weighs against finding that the Veteran’s psychiatric and bruxism began during service or are otherwise etiologically 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), 3.304, 3.307, 3.309. Specifically, the service treatment records do not report any signs, symptoms, or a diagnosis of a psychiatric disorder or bruxism at any point during service. Of note, the Veteran’s June 1978 separation examination is silent for any symptoms or a diagnosis related to these disorders. In fact, the Veteran specifically denied any symptoms related to these disorders and stated, “I am in excellent health!” The post-service medical evidence includes statements to the Veteran’s medical providers that he had symptoms of a psychiatric disorder and bruxism since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to a psychiatric disorder or bruxism until approximately 2014. Therefore, continuity of symptoms has not been shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board recognizes the statements from the Veteran and his wife regarding his history of depressive disorder and bruxism since service. While the Veteran is competent to report that he experienced teeth grinding, feelings of depression, anxiety, and other related psychiatric symptoms, since service, they are not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his current disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not sufficient to establish a relationship between his complaints and service. As an initial matter, the large gap in treatment for the asserted conditions weighs against the Veteran’s claims. Further, the Veteran’s service and medical treatment records are inconsistent with his assertions that his symptoms have persisted since service. Here, the Veteran’s history of a psychiatric disorder and bruxism symptoms is inconsistent with his June 1978 separation examination and June 2014 VA examination, the latter of which reflects the Veteran’s denial of related symptoms since service. Further, the Board notes that the Veteran filed a claim for VA benefits over 30 years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other disorders, but made no reference to the disorders he now claims, weighs heavily against his credibility. Although the Veteran is not competent to diagnose and provide etiological opinions related to a psychiatric disorder and bruxism, service connection may nonetheless be established if a relationship may be otherwise established by competent evidence, including medical evidence and opinions. In this case, however, the competent evidence fails to establish a relationship between active duty and the Veteran’s current symptoms. In this regard, the Board places significant probative value on the opinions from the VA examiners who performed a detailed review of the Veteran’s service and medical treatment records, as well as a comprehensive examination. Specifically, the June 2014 VA examiner opined that the Veteran’s psychiatric disorder other than PTSD, diagnosed as a depressive disorder, was not related to service. In support, the examiner noted that the Veteran reported that his depressive symptoms began 10 years after service. Moreover, she determined that his “symptoms do not associate with his military experiences in the way they should if his depressive symptoms were related to his in-service combat symptoms.” With respect to his bruxism, the June 2014 VA examiner opined that it was caused by the Veteran’s non-service-connected psychiatric disorder. Of note, the Board observes that while the examiner indicated that the Veteran was service connected for his psychiatric disorder, this is not actually the case. The Board also infers that based upon the findings in the examination report, including the examiner’s determination that the Veteran did not have any symptoms of bruxism in service or complaints until many years later, his disorder is not otherwise related to active service. Additionally, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a relationship between his bruxism and psychiatric disorder, and active service. As part of this claim, the Board recognizes the statements from the Veteran and his wife, regarding the relationship between his disorders and active service. Nevertheless, while they are competent to provide testimony regarding observable symptomatology such as teeth grinding and psychiatric symptoms, including depression and anxiety, they are not competent to provide a nexus opinion in this case. These issues are also medically complex, as they require knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s psychiatric disorder and bruxism are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection for bilateral shoulder, bilateral knee, tinea pedis, bruxism, and psychiatric disorders, and there is no doubt (CONTINUED ON NEXT PAGE) to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel