Citation Nr: 18159893 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-61 819 DATE: December 20, 2018 ORDER Service connection for a left leg condition, claimed as neuropathy and numbness, is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The medical evidence of record does not show that the Veteran has, or has had at any point pertinent to the appeal, a diagnosis of left leg neuropathy. CONCLUSION OF LAW The criteria for service connection for a left leg condition, claimed as neuropathy and numbness, are not 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 in the United States Marine Corps from March 3, 1970 to April 22, 1970. He had additional military service in the United States Army from December 1971 to August 1973. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran seeks service connection for a left leg condition, which he describes as characterized by numbness. At the outset, the Board notes that the Veteran has provided little information concerning an theory of entitlement for this condition. Thus, the Board will consider generally whether the evidence supports a finding of service connection. To that end, a thorough review of VA and private treatment records fail to show a diagnosis of any disability related to the Veteran’s left leg, to include any neuropathy or numbness. Therefore, the Board finds that the Veteran’s claim for entitlement to service connection for a left leg condition must be denied. In making this determination, the Board highlights that the first element required for service connection is the existence of a current disability. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; Pond v. West, 12 Vet. App. 341 (1999). Without a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). Here, the evidence does not show that there is a current disability, as the medical evidence of record reveals no confirmed diagnosis of any left leg disability. The only evidence in the claims file supporting the existence of a disability manifested by numbness is the Veteran’s own statements. The Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, the Veteran does not have any actual specialized knowledge of medicine in general, and his conclusions as to whether he has a current disability are speculation. In this regard, he is not competent to diagnose a neurological disorder, as such a diagnosis requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (laypersons are competent to describe symptoms which support a later diagnosis); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As such, the Veteran’s statements to the effect that he has a current left leg disability are lacking in probative value. In short, in the absence of persuasive probative evidence demonstrating any current disability, a preponderance of the evidence is against the Veteran’s claim. Accordingly, because the first element required for service connection—presence of a current disability—has not been satisfied, the Veteran’s claim of entitlement to service connection for a left leg condition, claimed as neuropathy and numbness, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND As concerns the Veteran’s remaining claim, the Board finds that additional development is warranted. The Veteran contends that he developed PTSD while serving in the Army, and the resulting insanity caused him to go absent without leave (AWOL), which led to his eventual discharge from the Army under other than honorable conditions. The Board notes that, while AWOL, the Veteran was arrested and imprisoned for 5 years for various property crimes stemming from a burglary. In order to qualify for VA compensation or pension benefits, a claimant must first establish “veteran” status, as defined under VA law. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A “veteran” is defined as a service member who was discharged or released from active military service under conditions other than dishonorable. 38 U.S.C. § 101 (2) (2014); 38 C.F.R. § 3.1 (2015). Where VA determines that a person’s discharge from service was under dishonorable conditions, the payment of pension, compensation or dependency and indemnity compensation, based on that period of service, is barred. See Cropper v. Brown, 6 Vet. App. 450, 452-53 (1994); 38 C.F.R. § 3.12 (2017). However, the designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12 (a). An “other than honorable” discharge is not necessarily tantamount to a “dishonorable” discharge and, thereby, a bar to VA benefits. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C. § 5303; 38 C.F.R. § 3.12; see Camarena v. Brown, 6 Vet. App. 565, 567-68 (1994) (finding that 38 C.F.R. § 3.12 does not limit “dishonorable conditions” to only those cases where dishonorable discharge was adjudged). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C. § 5303 (a) and 38 C.F.R. § 3.12 (c) and regulatory bars listed in 38 C.F.R. § 3.12 (d). According to 38 C.F.R. § 3.12 (c), benefits are not payable when a former service member is discharged or released under one of the six conditions enumerated therein. According to 38 C.F.R. § 3.12 (d), there are five offenses for which a discharge or release will be considered to have been issued under dishonorable conditions. Such offenses include discharge due to “willful and persistent misconduct,” 38 C.F.R. § 3.12 (d)(4), which is defined as having occurred when an appellant is discharged under other than honorable conditions, if it is determined that the discharge was issued because of willful and persistent misconduct. A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12 (b). Per VA regulations, an “insane” person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his or her normal method of behavior; or interferes with the peace of society; or has so departed (become antisocial) from the accepted standards of the community to which by birth and education he or she belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he or she resides. 38 C.F.R. § 3.354 (a). The condition of insanity need only exist at the time of the commission of the offense leading to the person’s discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145, 154 (1996). There still must be competent evidence establishing the appellant was insane at the time of the offenses leading to an “other than honorable discharge.” See Zang v. Brown, 8 Vet. App. 246, 254 (1995). Although establishing a causal connection between the insanity and the act is not required, the burden is on the appellant to submit sufficient evidence of his or her insanity. Struck, supra; Helige v. Principi, 4 Vet. App. 32 (1993); VAOPGCPREC 20-97 (May 22, 1997). The record shows that the Veteran has been diagnosed with multiple psychiatric disorders, to include anxiety disorder, major depression and panic disorder. The Veteran contends that his current psychiatric condition is due to incidents which occurred during his second period of service. Currently, the record is unclear as to the nature of his discharge from that period. It does not appear that any determination has ever been made regarding the character of the Veteran’s discharge from his second period of service, and whether that discharge is a bar to VA compensation benefits. Accordingly, a determination must be made as to the character of discharge from the Veteran’s second period of service, and his claim developed accordingly. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction should obtain the appellant’s complete service personnel records for his second period of service, from December 1971 to August 1973. Then, a character of discharge determination should be made based thereon. 2. Once the determination is made, schedule the Veteran for a VA mental health examination. a. If the Veteran’s period of service is found to be a bar to VA benefits, the examiner should be asked to address whether the Veteran was insane for VA purposes at the time of the actions leading to his discharge under other than honorable conditions. If an examination is deemed necessary to respond the questions, one should be scheduled. After a review of the claims file, to specifically include the Veteran’s lay statements of record, the examiner should answer the following: i. At the time the Veteran went AWOL, did he, due to disease, exhibit a more or less prolonged deviation from his normal method of behavior? ii. At the time the Veteran went AWOL, did he, due to disease, interfere with the peace of society? iii. At the time the Veteran went AWOL, was he, due to disease, so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides? iv. Was the Veteran otherwise insane at the time he went AWOL? b. If the Veteran’s period of service is found to be other than “dishonorable,” the examiner should offer an opinion as to whether it is it at least as likely as not (i.e., 50 percent or greater probability) that such disorder had its onset during the Veteran’s military service or was caused by any incident or event that occurred during his service. If opinions cannot be rendered without resorting to speculation as to the etiology of any other psychiatric disability, the examiner should discuss in detail why an opinion cannot be offered. A complete rationale for all opinions expressed must be provided. The copy of the examination report and all completed test reports should thereafter be associated with the claims folder. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. (Continued on the next page)   JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock