Citation Nr: 18161325 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-06 281A DATE: December 31, 2018 ORDER Entitlement to service connection for shin splints is denied. Entitlement to service connection for residuals of frostbite in the bilateral feet is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for a gastrointestinal disorder is denied. REMANDED Entitlement to service connection for rhinitis is remanded. FINDINGS OF FACT 1. The evidence does not demonstrate a diagnosis of shin splints. 2. The evidence does not demonstrate a diagnosis of residuals of frostbite. 3. The evidence does not demonstrate a diagnosis of PTSD. 4. A gastrointestinal disorder did not have onset in service and is not otherwise related to service, and is not proximately due to or the result of, or aggravated by, a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for shin splints are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for entitlement to service connection for residuals of frostbite are not met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.304 (2018). 4. The criteria for entitlement to service connection for a gastrointestinal disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in the VA Form 9 received in March 2015. In July 2018, however, the Veteran withdrew his hearing request. The Board further notes that the Veteran had initially appealed claims of entitlement to service connection for bilateral hearing loss and loss of teeth from the September 2013 rating decision. They were addressed in the January 2015 Statement of the Case, but the Veteran failed to perfect appeals as to these issues in his March 2015 VA Form 9. In a March 2017 letter the Veteran was informed that appeals as to these issues had been discontinued. Duties to Notify and Assist No VA examination was provided to the Veteran for his gastrointestinal disorder claim. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). In this case, no examination is necessary because the evidence does not establish that the Veteran suffered an event, injury, or disease during service, or indicate that any gastrointestinal disorder is related to service or to another service-connected disability. Accordingly, no examination is warranted. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 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 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2018). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary’s adjudication of the claim). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for shin splints With his claim the Veteran submitted a March 2012 statement indicating that he developed shin splints while in basic training. He reported that he was treated with bed rest but that he still was unable to run. The Board finds that service connection is not warranted because a present disability is not shown. In the absence of proof of a current disability for which service connection may be granted, there can be no valid claim. Brammer, 3 Vet. App. 223, 225 (1992). An undated STR documents a diagnosis of shin splint in the right leg after the Veteran had noted right leg pain three days earlier. An in-service injury is thus shown. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). However, the evidence does not demonstrate a current disability. VA provided an examination in August 2013. The examiner noted that the Veteran had shin splints on one occasion after a march during service. He was treated with rest for a week and a half. The Veteran reported that he was not currently on treatment for shin splints, but he had intermittent cramps in the calves and feet. The examiner did not provide an opinion because no pathology was found on examination at that time. T This examination is probative evidence that supports a finding the Veteran does not have present disability manifested by shin splints. The examiner conducted an examination and considered the Veteran’s medical history. The Board thus accords the opinion significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Additionally, VA treatment records or any other source of evidence do not document a diagnosis of shin splints. Moreover, the evidence does not indicate that the intermittent cramping causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). In fact, the only evidence to suggest that shin splints are present are the Veteran’s own statements. However, to the extent the Veteran is diagnosing shin splints, his claims are non-competent lay evidence. Although it is error to categorically reject a lay person as competent to provide a diagnosis, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, while noting symptoms such as leg pain is within the Veteran’s lay expertise, the diagnosis of shin splints is not. Such a diagnosis is distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). In any event, the Veteran’s statements are outweighed by the probative and competent evidence of record. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. The claim of entitlement to service connection for residuals of frostbite in the bilateral feet With his March 2012 claim, the Veteran submitted a statement describing how he suffered frostbite in his feet in Germany. The Board finds that service connection is not warranted because a present disability is not shown. In the absence of proof of a current disability for which service connection may be granted, there can be no valid claim. Brammer, 3 Vet. App. at 225. The Veteran’s STRs document a cold injury in December 1989. He complained of painful, numb, and edematous feet. STRs do not document any further complaints. An in-service injury is nonetheless demonstrated. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). However, the evidence does not demonstrate a present disability. VA provided an examination in August 2013. The examiner acknowledged that the Veteran had a history of mild frostbite during service. In describing his history, the Veteran reported that his in-service frostbite had completely resolved and that there were no residual symptoms. The examiner similarly found no symptoms of arthralgia, cold sensitivity, color change, hyperhidrosis, numbness, tissue loss, locally impaired sensation, or nail abnormalities in either foot. Due to the lack of any pathology found on examination at that time, the examiner did not render an opinion. This examination is probative evidence that supports a finding the Veteran does not have present disability manifested by residuals of frostbite. The examiner conducted an examination and considered the Veteran’s medical history. The Board thus accords the opinion significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. VA treatment records or any other source of evidence do not document a diagnosis of frostbite residuals. The only evidence to suggest that such residuals are present are the Veteran’s own statements. However, to the extent the Veteran is diagnosing these residuals, his claims are non-competent lay evidence. Here, while noting symptoms such as leg pain is something within the Veteran’s lay expertise, the diagnosis of residual complications of frostbite is not. Such a diagnosis is distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374. In any event, the Veteran’s statements are outweighed by the probative and competent evidence of record. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for PTSD The Veteran alleges that he has PTSD that is related to an in-service stressor. With his March 2012 claim, the Veteran submitted a statement describing his exposure to gunfire and witnessing a female service member falling off a dock while wearing body armor and drowning. Service connection for PTSD requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link established by medical evidence between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders. 38 C.F.R. §§ 3.304 (f), 4.125(a). During the claim, the Veteran clarified his appeal by asserting he intended to claim entitlement to service connection for anxiety and depression. However, the Board notes that the service connection claim for PTSD is not broadly characterized as a claim for an acquired psychiatric disorder. Indeed, service connection for other psychiatric disorders such as anxiety disorder and depression was previously denied in a 2015 rating decision and was not appealed to the Board. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board will only consider whether the Veteran has PTSD that is related to service. The Board finds that the evidence of record does not demonstrate a present disability. VA provided an examination in August 2013. After examining the Veteran, the examiner diagnosed anxiety disorder, not otherwise specified. The examiner specifically found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD. In particular, the Veteran did not meet the reexperiencing, avoidance, and persistent symptoms of increased arousal criteria. Significantly, the examiner acknowledged that the Veteran’s reported stressor of witnessing a fellow service-member drowning was sufficient to support a diagnosis of PTSD. However, the remaining criteria were not present. This examination is probative evidence that supports a finding the Veteran does not have PTSD. The examiner conducted an examination and considered the Veteran’s medical history. The Board thus accords the opinion significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. VA treatment records or any other source of evidence do not document a diagnosis of PTSD. While VA treatment records do document a past history of PTSD, evaluations consistent show a diagnosis of depression or anxiety. PTSD is ruled out on multiple occasions. See e.g. April 2016 VA Mental Health note. The few instances where PTSD is diagnosed are without explanation and are otherwise rebutted by the probative findings of the August 2013 VA examination. The remaining evidence to suggest that the Veteran has PTSD are his lay statements. However, to the extent the Veteran has PTSD, his claims are non-competent lay evidence because the differentiation of different psychiatric disorders is an internal process not capable of lay observation. Such a diagnosis is distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; Charles, 16 Vet. App. at 374. In any event, the Veteran’s statements are outweighed by the probative and competent evidence of record. The Board has also considered argument made by the Veteran’s representative in a November 2018 brief. Specifically, the representative asserted that the Veteran’s reported stressor of witnessing the death of a fellow service member was adequate to support a diagnosis of PTSD. The Board notes that the August 2013 VA examiner acknowledged that the Veteran’s reported stressor was adequate to support the diagnosis. However, PTSD was not found on other bases, and the representative’s argument does not advance argument to rebut these findings. In conclusion, the Board finds that the preponderance of the evidence is against a finding that the Veteran has PTSD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a gastrointestinal disorder With his claim the Veteran submitted a March 2012 statement describing excess stomach acid that causes heartburn and esophagus problems. The Veteran did not advance any particular theory of entitlement. However, in his March 2015 VA Form 9 he alleged that diagnoses of acid reflux and GERD were secondarily related to anxiety and/or depression. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA treatment records document a diagnosis of GERD and gastroparesis in February 2009. Current medications taken include pantoprazole for heartburn. Second, the Board finds that there was not an in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran does not assert, nor does the evidence show, that he suffered from gastrointestinal symptoms during service. The Veteran asserts service connection on a secondary theory of entitlement. An in-service disease or event is not shown. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s gastrointestinal disorders are related to active service. No VA examination has been conducted for the Veteran’s claim. However, as noted above, there is nothing to suggest that the Veteran’s gastrointestinal disorders are related to service. As such, service connection must be denied on a direct basis. Further, to the extent the Veteran claims that his gastrointestinal disorders are related to a service-connected condition his claim must be denied. The Veteran asserts his disorders are secondarily caused by a psychiatric disorder. Service connection for PTSD is denied in the instant decision. Further, rating decisions from March and December 2015 denied service connection for depression and anxiety. All disorders that the Veteran claims caused his gastrointestinal complaints are not service-connected. Therefore, service connection is not warranted on a secondary theory of entitlement as a matter of law. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for rhinitis Remand is required for an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). With his claim the Veteran submitted a March 2012 statement alleging he developed an upper respiratory, or continuous sinus problems, in service that had existed since then. He reported that the upper respiratory condition developed while he served in Germany. STRs document treatment for a viral upper respiratory infection in June 1988, a sore throat in September 1986, pharyngitis in February 1988, and a viral upper respiratory infection in June 1988. VA treatment records from May 2012 show a diagnosis of chronic sinus congestion. See e.g. May 2012 Primary Care Attending Note. VA provided an examination in August 2013 that showed a diagnosis of rhinitis. The examiner acknowledged the Veteran’s in-service treatment involving the upper respiratory tract. However, the examiner opined that the Veteran’s claimed rhinitis was less likely than not caused by the Veteran’s in-service complaints. The examiner explained that the Veteran was treated for simple viral upper respiratory infections during service. These infections were self-limited illnesses and were not expected to cause any long-term health effects. This opinion is inadequate as the examiner did not address the Veteran’s lay statements that he has suffered from sinus problems since his military service. Accordingly, an opinion should be obtained on remand that reflects consideration of the Veteran’s statements. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his rhinitis. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the rhinitis had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service development of sinus difficulties and of continuous symptoms since service. The examiner must also specifically address the in-service treatment of upper respiratory conditions contained in the Veteran’s STRs. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel