Citation Nr: 18156481 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-17 680 DATE: December 11, 2018 ORDER Entitlement to service connection for left shoulder strain is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with disturbance of emotions and conduct (hereinafter psychiatric disorder) is denied. REMANDED Whether the severance of service connection for right shoulder strain was proper is remanded. Entitlement to an initial rating in excess of 10 percent for right shoulder strain is remanded. Whether the severance of service connection for neck scar was proper is remanded. Entitlement to an initial compensable rating for neck scar is remanded. Entitlement to service connection for cervical spine strain, to include as secondary to right shoulder strain, is remanded. Entitlement to an initial compensable rating for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s left shoulder strain is related to an event, injury, or disease in service. 2. The Veteran’s current psychiatric disorder has not been shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder strain have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to May 1992. He was discharged from the Naval Reserves in April 1996. In July 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In its October 2013 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for left leg condition and PTSD. Although the Veteran filed a Notice of Disagreement (NOD) disagreeing with the denial, his April 2015 VA Form 9 stated that he only wished to appeal the issue of entitlement to service connection for PTSD. Therefore, the issue of entitlement to service connection for left leg condition is not before the Board. The Board observes that the Veteran initially filed a claim of entitlement to service connection for PTSD. However, the AOJ noted that the Veteran has been diagnosed with adjustment disorder with disturbance of emotions and conduct. Considering Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds that it is appropriate to recharacterize the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and adjustment disorder with disturbance of emotions and conduct. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). It follows that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ADT), or from injury (but not diseases) incurred or aggravated while performing inactive duty training (IDT). 38 U.S.C. §§ 101(24), 106, 1131. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ADT or IDT unless “Veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ADT service and who is not otherwise a Veteran. Paulson, 7 Vet. App. at 470. Even for Veterans who have achieved “Veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ADT, the presumption of soundness applies only when the Veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ADT (or IDT) in which the Veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 45-46. Moreover, if the claimant has not achieved “Veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ADT (or IDT), no matter if an examination occurred prior to the period of ADT (or IDT). Id. With respect to a claim for aggravation of a preexisting condition during a period of ADT or IDT, for a claimant to establish “Veteran” status, the claimant must demonstrate both elements of aggravation: (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167, 174 (2010). In such instances, the claimant is not entitled to the presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the “benefit of the doubt” standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for left shoulder sprain The Veteran contends that his left shoulder sprain is related to his military service. Specifically, the Veteran stated that while in active service and/or the reserves, the physical training caused his left shoulder pain. The Veteran has been diagnosed with left shoulder strain. As such, the first Shedden element has been met. The Veteran’s service treatment records (STR) do not document complaints, treatments, or diagnosis for a left shoulder strain. During his May 1992 Report of Medical Examination: Separation examination, the Veteran’s upper extremities, spine, and other musculoskeletal system were noted as being normal. The Veteran noted that he felt good and was on no medication. He stated that he did not have painful or trick shoulder. He further stated that he did not have any illness or injury other than those already noted. The Veteran’s April 1993 reserves treatment records note complains of right shoulder pain. He was diagnosed with trapezius muscle irritation. During his June 1993 Report of Medical Examination: Physical, the Veteran noted that he had a painful or trick shoulder or elbow, i.e., a painful right shoulder. The examiner also noted that the was treated for a right shoulder issue. The Veteran was treated at the Durham VAMC for, among other things, right shoulder pain. However, there are no complaints, treatments, or diagnoses for left shoulder strain or condition. In May 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his left shoulder condition. The Veteran stated that his shoulder pain began in 1988. He stated that while stationed in long beach, he developed shoulder pain during physical training and lifting. The examiner confirmed the Veteran’s left shoulder strain diagnosis. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there were no records that related any encounters regarding the Veteran’s left shoulder and his military service. During his July 2018 Board hearing, the Veteran testified that he injured his left shoulder at the same time he injured his right. He stated that in 1993, he also sought treatment for his left shoulder; however, since the right shoulder was more severe, medical professions focused more on the right shoulder than the left. Based on the evidence of record, the Board finds that service connection for left shoulder strain is not warranted. The Veteran’s STRs documents complaints, treatments, and diagnosis for right shoulder trapezius irritation. However, there were no complaints, treatments or diagnosis for a left shoulder condition. The first medical evidence of the disability was during his 2014 VA examination which was over 22 years after his discharge from active service and over 18 years after discharge from the reserves. The fact that there were no records of any complaints or treatment involving the Veteran’s left shoulder strain for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). As such, the Board finds that elements two and three under Shedden have not been met. Therefore, service connection is not warranted. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s left shoulder strain. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s left shoulder strain and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s left shoulder strain to service. In the absence of a nexus, the claim for service connection for left shoulder strain is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See Gilbert, 1 Vet. App. at 55-56; 38 U.S.C. § 5107(b). 2. Entitlement to service connection for PTSD The Veteran contends that his psychiatric disorder is due to his military service. The Veteran has been diagnosed with adjustment disorder with disturbance of emotions and conduct. As such, element one under Shedden is met. The Veteran’s STRs do not document treatments, complaints, or diagnosis of a psychiatric disorder. During his May 1992 Report of Medical History: Separation examinations and his June 1993 Physical, the Veteran did not report having any mental illnesses. He stated that he did not have frequent trouble sleeping, depression or excess worry or nervous trouble of any sort. He noted that he did not have any illness or injury other than those already noted. A psychiatric condition was not noted on the separation. In February 2013, the Veteran was seen at the Raleigh CDOC: Nurse Intake Interview. The Veteran’s PTSD screening was positive for PTSD. In October 2013, a physician diagnosed the Veteran with anxiety and depression NOS and ruled out PTSD. In September 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his psychiatric disorder. The Veteran originally filed a claim for entitlement to service connection for PTSD. He stated that he served on a ship but did not participate in combat activity. The Veteran stated that while he was in the Gulf, his shipmates started “doing crazy stuff.” He saw a man in the weight room dropped weights on themselves. The Veteran felt that the man was trying to commit suicide. The Veteran also stated that another man tattooed profane language on his arms. Additionally, when he was in the Gulf, Kuwait, they were told to “fire the gun.” He said he had to fire the gun in to the land so that the Marines could land. The Veteran denied witnessing anyone hurt or injured. He stated that they were just securing the area. He could not tell if anyone was there, and he was not fired upon. He noted that there were alarms going off in the night, and he could not determine if it was a drill or a fire. He heard a man got hurt and was air lifted, but he did not witness the event. For the rest of his tour, the Veteran and his shipmates waited to pick up the Marines. The examiner stated that the Veteran did not meet the criteria for PTSD; however, the examiner diagnosed the Veteran with adjustment disorder with disturbance of emotions and conduct. The examiner stated that the Veteran’s adjustment disorder appeared to be a reaction to life events. The examiner opined that the Veterans diagnosed conditions is less likely than not (less than 50/50 probability) caused by or a result of in-service events. The examiner stated that the Veteran’s had no record of emotional issues in service. In addition, his separation exam did not note any emotional reactions to the events in service. During his July 2018 Board hearing, the Veteran stated that he has PTSD that is due to his military service. The Veteran stated that he saw “crazy stuff,” to include a friend attempting to commit suicide by dropping weights on himself and people tattooing profane language on their fingers. The Veteran stated that his ship transported Marines to Kuwait. He became friends with a lot of the Marines his ship transported. He stated that he lost a lot of Marine friends in Kuwait. He also stated that he was a gunner’s mate and had to fire his guns to clear a path for the Marines. Based on the evidence of record, the Board finds that service connection for a psychiatric disorder is not warranted. The Veteran’s STRs do not show complaints, treatments, or diagnoses for a psychiatric disorder, to include adjustment disorder, PTSD, depression or anxiety. The first medical evidence of a psychiatric disorder was in 2013, i.e., over 21 years after his discharge from active service and over 17 years after discharge from the reserves. The fact that there were no records of any complaints or treatments involving the Veteran’s psychiatric disorder for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran’s entire medical history, including a lengthy period of absence of complaints). Additionally, the Veteran’s psychiatric disorder has been attributed to his reactions to life events. As such, the Board finds that elements two and three under Shedden have not been met. Therefore, service connection is not warranted. The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s psychiatric disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s psychiatric disorder and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran’s psychiatric disorder to service. In the absence of a nexus, the claim for service connection for psychiatric disorder is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See Gilbert, 1 Vet. App. at 55-56; 38 U.S.C. § 5107(b). REASONS FOR REMAND In a May 2014 rating decision, the AOJ granted service connection for right shoulder strain and assigned a 10 percent rating. The AOJ also granted service connection for neck scar and assigned a noncompensable rating. In June 2014, the Veteran filed a timely NOD disagreeing with the evaluations. In a September 2015 rating decision, the AOJ proposed to sever service connection for right shoulder strain and neck scar. The AOJ also issued a Statement of the Case (SOC) addressing the continued compensation for right shoulder strain and neck scar. In a December 2015 rating decision, the AOJ severed service connection for the right shoulder strain and neck scar effective February 2016. In January 2016, the Veteran filed a NOD disagreeing with the severance. A review of the record reveals that the Veteran has not been issued an SOC addressing the severance of service connection for right shoulder strain and neck scar. As the RO has not yet provided the Veteran with an SOC, the Board is required to remand these issues. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999). With respect to the Veteran’s claims for increased rating for right shoulder strain and neck scar, the Board finds that they are inextricably intertwined with the pending severance claims. However, the law clearly is dispositive as it prohibits a retroactive increase once basic entitlement has been terminated. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, it is appropriate to defer final appellate review of the increased rating claims until the inextricably intertwined claim has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). In his June 2014 NOD, the Veteran stated that while in active service and/or the reserves, the physical training caused his right shoulder pain. The Veteran stated that his cervical spine strain is connected to his right shoulder strain. The Veteran’s reserves treatment records document complaints, treatments, and diagnosis of a right shoulder trapezius muscle irritation which radiated to his neck. In May 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his cervical spine strain. The examiner opined that the claimed condition is less likely than not (less than 50 percent probability) related to the Veteran’s military service. Additionally, the examiner opined that the Veteran’s cervical spine strain is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected shoulder condition. The examiner stated that there are no records provided that related any encounters regarding in-service evaluations or treatments for a cervical spine condition. However, as noted above, the Veteran’s STRs note treatment for shoulder pain radiating to his neck. As such, the Board finds the May 2014 VA examination report to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). However, as noted above, the propriety of the severance of service connection for right shoulder condition is on appeal. The Board finds the issue of entitlement to service connection for cervical spine strain is inextricably intertwined with the pending right shoulder strain severance claim. Thus, it is appropriate to defer final appellate review of the service connection claim until the inextricably intertwined claim has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). During his July 2018 Board hearing, the Veteran stated that his pseudofolliculitis barbae has gotten worse since the 2014 VA examination. The Veteran stated that he now uses two different types of creams to treat his condition. Additionally, since the last VA exam, he gets bumps, irritation, and redness on the back of my neck and in his hair. He stated that the bumps become infection and scarring occurs. He further stated that more than five percent of his exposed skin is affected. The Board notes that the Veteran’s last examination was in May 2014. Therefore, the Veteran should be afforded an examination to determine the current severity of his pseudofolliculitis barbae. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Contact the Veteran and request that he identify all private providers who have treated him for his pseudofolliculitis barbae. After obtaining authorization, obtain all outstanding records. If the records are unavailable, document the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Thereafter, schedule a VA examination to determine the current severity and manifestations of his pseudofolliculitis barbae. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All findings should be reported in detail. Regarding the Veteran’s head, face, and neck, the examiner should describe the total area that is affected by the Veteran’s pseudofolliculitis barbae, as well as any treatment for the condition. The examiner should also determine whether the Veteran’s pseudofolliculitis barbae has resulted in any scars and/or disfigurement. The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran’s lay statements. 4. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted, and readjudicate the issues on appeal. If the benefits sought remain denied, furnish the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel