Citation Nr: 18158149 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 15-27 970 DATE: December 14, 2018 ORDER Entitlement to service connection for frostbite, bilateral feet is denied. Entitlement to service connection for an acquired psychiatric disorder, to include parasomnia is denied. REMANDED Entitlement for service connection for a throat condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of partial frostbite or any frostbite residuals. 2. The Veteran did not have psychiatric symptoms in service or for many years post service, and an acquired psychiatric disorder, to include parasomnia, has not been linked by the most probative evidence to service. CONCLUSIONS OF LAW 1. The criteria for service connection for frostbite, bilateral feet have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include parasomnia, have not been met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1951 to June 1955, including service in Korea from January 1953 to October 1953. He was assigned to a supply and air base squadron when in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, FL. The Veteran died in December 2016 during the pendency of the appeal and the Veteran’s surviving spouse timely requested to be substituted as the appellant for the purpose of processing the claim on appeal to completion. The Agency of Original Jurisdiction substituted his surviving spouse in accordance with 38 U.S.C. § 5121A. The appellant and her daughter appeared at a Board hearing before the undersigned Veterans Law Judge in June 2017. A transcript of the hearing is in the Veteran’s file. This matter was previously before the Board in August 2017, which denied service connection for PTSD, tonsillitis and frostbite. The appellant appealed the decision of to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2018 Joint Motion for Remand, the Court set aside the Board’s August 2017 denial of service connection for PTSD, tonsillitis and frostbite and remanded the appeal for re-adjudication. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 1. Frostbite, bilateral feet The Veteran contends he incurred frostbite while stationed in Korea. Service treatment records (STRs) are silent as to any injuries or symptoms of frostbite. The VA medical clinic documents the Veteran complained of feet pain and had red spots on his toes in March 2014. In November 2014, VA medical records show he had diabetes mellitus and diabetic peripheral neuropathy in his feet. At the May 2015 VA examination, the examiner found no current diagnosis of frostbite in either foot. It was noted that the Veteran needed assistive devices, such as a wheelchair and walker, but it was secondary to his stroke, which left him weak. The examiner reviewed the Veteran’s C-file, which showed multiple infections and hospitalizations while in Korea, but no mention of frostbite. The examiner found no objective evidence of any cold injury condition. In August 2015, a VA medical practitioner found that the pain in the Veteran’s feet were more likely than not related to frostbite he suffered during his military time in Korea. There is no evidence, however, that the medical practitioner reviewed the Veteran’s past medical records or STRs. There is no rationale or reasons supporting this conclusion, and the Board places little probative value on an assessment, based solely on the Veteran’s lay statement and devoid of any explanation. The May 2015 VA examination by contrast, evidences a thorough review of the Veteran’s entire file, and thus has more probative value. As no current diagnosis of cold injuries to the feet have been found, the claim must be denied. 2. Acquired psychiatric disorder Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f)(3). For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The appellant contends the Veteran had an acquired psychiatric disorder that was incurred during his active duty service in Korea. With respect to any aspect of this appeal that may contemplate a request for service connection for posttraumatic stress disorder (PTSD), the Board observes the Veteran has not been diagnosed to have that disability, and therefore, there is no basis to establish service connection for it. With respect to dementia, for which there is a diagnosis, the Board notes the Veteran’s service treatment records do not reflect any complaints, or symptoms considered to reflect dementia, and that disability was not seen in the record for many years after service. Furthermore, no competent evidence links the Veteran’s dementia to service. Given these facts, there is no reasonable basis for concluding dementia was incurred in service. With respect to the diagnosis of parasomnia seen in the record, the Board notes that is a category of sleep disorders in which abnormal physiological or behavioral events occur during sleep due to inappropriately timed activation of physiological systems. See Dorland’s Illustrated Medical Dictionary 1402 (31st ed. 2007). In this regard, the general contention is that the Veteran was seen to thrash about when sleeping or soon after awakening and that this presentation, which constituted his parasomnia, was brought about by events or observations he experienced during service. The Veteran’s treatment records show this parasomnia beginning in the 2000’s, some 50 years after service. Notably, in records dated in 2009 and 2014, this is attributed to the Veteran’s awareness under anesthesia during his heart by-pass surgery in 2003. The symptoms of it evidently began at that time, and this indicated to be a known consequence of awareness during anesthesia. Also significant is that 2014 VA treatment records, include the treatment provider’s notation during the treatment session that the appellant was “pushing hard and directly for a diagnosis of PTSD to be made for compensation purposes.” From the overall context of the report, it is plain the appellant was seeking to manipulate the entries in the record for financial gain. These facts weigh heavily against the conclusion that the Veteran’s parasomnia was incurred in service. The evidence does, however, include a May 2015 examination report prepared for VA by a contract psychologist in which the Veteran was diagnosed to have parasomnia, which the examiner remarked was at least as likely as not due to the Veteran’s military service/the claimed in-service stressor. That military service history/stressor was noted to include witnessing death and seeing dead bodies on multiple occasions while serving in Korea. However, the probative value of this report is diminished by the examiner’s stated reliance on the appellant who it was noted in the “History” portion of the report “provided the majority of the information.” Since she has shown her willingness to attempt to manipulate the record for financial gain, she is unreliable as a historian, and as such, any conclusions based on a history she reports is likewise less reliable. Moreover, the 2015 examiner did not reflect an awareness of the conclusions set out in the Veteran’s treatment records that related his parasomnia to his experience during his post service heart surgery, which adds to the notion that this examiner’s conclusion was not based on an understanding of all the relevant records. Since parasomnia was not seen in service or for decades after service, and the most probative evidence relates it to the Veteran’s awareness under anesthesia for his by-pass surgery some 50 years after service, a basis upon which to establish service connection for it has not been presented. In reaching this conclusion, the Board also has considered the statements and testimony of the appellant and the Veteran’s children. The probative value of the appellant’s statements and testimony is significantly diminished given the evidence of her efforts to manipulate the content of record for financial gain. The testimony and statements from the Veteran’s children are likewise of limited probative value as they provided no meaningful chronological context for the recollections they reported; and with respect to an association of the Veteran’s outward behavior with service, it was either their own interpretation of the Veteran’s behavior that was the basis for an association with service, (an interpretation they are not shown competent to make),or there was a failure to identify any particular in-service experience considered to be the source of the symptoms observed. In any event, the overall weight of the evidence does not support the conclusion that it is at least as likely as not parasomnia was incurred in service Finally, the Board also acknowledges the Joint Motion for Remand reference to the law set out in McLendon v. Nicholson 20 Vet. App. 70, concerning in-service events as a basis for service connection, as opposed to only injuries and diseases. It is observed that the primary focus of McLendon case appears to have been whether VA had properly adhered to the requirements of the duty to assist, rather than whether the Board was properly applying the law relating to service connection. Nevertheless, it is noted that the word “event” as used in 38 C.F.R. 3.159(c)(4)(i) means one or more incidents associated with places, types, and circumstances of service giving rise to disability. This understanding was used in considering the evidence. REASON FOR REMAND Entitlement for service connection for a throat condition is remanded. The appellant seeks service connection for the Veteran’s tonsillitis. STRs show the Veteran was diagnosed with severe tonsillitis in service in February 1953. In December 2010, VA medical records show the Veteran complained of difficulty swallowing. A barium swallow test showed his esophagus was structurally normal with no findings of defects or masses, and he swallowed barium without difficulty. The Veteran was diagnosed with mild oropharyngeal dysphagia and was advised to take precautions swallowing. At a VA examination in May 2015, the examiner found the Veteran’s nasal and oropharynx without lesion and within normal limits. Although there was no recent diagnosis of tonsillitis, other disabilities may still be service connected when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Pursuant to Robinson v. Peake, 21 Vet. App. 545 (2006), VA is required to adjudicate all theories of entitlement reasonably raised by the record. Here, the Veteran’s oropharyngeal dysphagia or difficulty swallowing may be considered for service connection. However, there is no opinion whether the Veteran’s throat condition was due to an in-service illness. A remand is necessary as a clarifying medical opinion is needed to determine whether there is a nexus between the Veteran’s oropharyngeal dysphagia and an in-service illness. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any updated/outstanding VA treatment records not already associated with the claims file that are relevant to the Veteran’s claim. 2. Obtain a VA medical opinion regarding the nature and etiology of the Veteran’s diagnosed oropharyngeal dysphagia. The entire claims file should be made available to, and be reviewed by, the VA examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s throat condition was related to or caused by service. A detailed rationale should be provided for the opinions rendered. If the examiner cannot provide the requested information without resort to speculation, he or she must state the reasons why. 3. After completion of the above, re-adjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, the appellant and her representative should be furnished with a Supplemental Statement of the Case. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel