Citation Nr: 1807820 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-15 622A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for hepatitis A. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to March 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board has not recharacterized the issue of service connection for PTSD in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), as there is no evidence of record that the Veteran has been diagnosed with any psychiatric disorder. The Board notes in August 2011, the RO granted service connection for pseuofolliculitis barbae (PFB) and assigned a noncompensable rating from January 3, 2011. In November 2011, the Veteran filed a notice of disagreement (NOD) with the initial noncompensable rating. Thereafter, in a March 2014 Decision Review Officer (DRO) conference and written brief the Veteran requested an initial 30 percent rating for PFB. In April 2014, a DRO decision was issued and found clear and unmistakable error in failing to assign the proper initial evaluation for PFB. A 30 percent rating was assigned for PFB effective January 3, 2011. The Veteran was notified this was a full grant of the benefits sought on appeal. The Veteran did not express any dissatisfaction with the April 2014 rating decision or at any point thereafter. Consequently, as the Veteran's request for benefits was satisfied, the matter is no longer in appellate status. In September 2017, the Board found the motion to withdraw representation by the Veteran's attorney met the criteria of 38 C.F.R. § 20.608. The Board's databases were updated to reflect that the Veteran is no longer represented in the matter on appeal. The Veteran was scheduled for a Board hearing in August 2017. See July 2017 notice. Notice of the hearing was sent to the address of record and not returned as undeliverable. Regularity of the mail is presumed. The Veteran failed to appear. Consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(d). The issue of entitlement to TDIU has been raised by the record in a November 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of service connection for hepatitis A is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The record does not contain any objective evidence of a verified in-service stressor or a competent diagnosis of PTSD. 2. Hypertension was not shown during service or for many years thereafter and has not been shown to be related to his active military service. CONCLUSION OF LAW 1. The criteria are not met for entitlement to service connection for PTSD. 38 U.S.C §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria are not met for entitlement to service connection for hypertension. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the issues decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO did not arrange for a VA examination/opinion as to the issues decided herein. The Board has considered whether an examination is necessary. With regard to the claim for PTSD, absent any competent evidence suggesting that the Veteran has a verified in service stressor and that the Veteran has a diagnosis of PTSD (or any other psychiatric disorder) that may be associated with a verified aspect of active duty service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Similarly, there is no evidence of hypertension in service or within the applicable presumptive period or any competent evidence suggesting that the Veteran's hypertension may be associated with a verified aspect of active duty service and thus, an examination is also not necessary. Id. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include psychosis and hypertension, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) . VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125, 4.126. An interim final rule was issued on August 4, 2014, that replaced the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) with the DSM-V. However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was first conferred to the Board in August 2017. If a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 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. 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010). The Board acknowledges that the Veteran's claim does not appear to have been considered in accordance with the revised PTSD regulations governing hostile military and terrorist activity. 38 C.F.R. §§ 3.304(f)(3). However, the Board finds that consideration of those specific provisions is unwarranted as the Veteran has alleged no particular in-service stressor, to include any stressor to which the Veteran attributes his PTSD involves either type of activity (fear of hostile military or terrorist activity). Having carefully considered the Veteran's claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim for PTSD. The Veteran contends that he is entitled to service connection for PTSD. However, he has not set forth any in-service stressor in order to attempt verification. Indeed in his claim for PTSD filed in October 2011, he did not list any stressors. Moreover, he did not respond to an October 2016 request by the RO to provide information regarding any stressors. A Formal Finding on a lack of information required to corroborate stressors was issued in December 2011. The Veteran has not alleged combat with the enemy and his service personnel records do not show the Veteran engaged in combat with the enemy. Notably, he was not awarded any medal or decoration that clearly indicates combat status. Any evidence of participation in a campaign does not, in itself, establish that a veteran engaged in combat because those terms ordinarily may encompass both combat and non- combat activities. VAOPGCPREC 12-99 (Oct. 18, 1999), 65 Fed. Reg. 6257 (2000). Thus, any bare assertion of an in-service stressor is not sufficient to establish that it occurred; rather, a stressor must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen, 10 Vet. App. at 142. This is not the case in the instant matter. Moreover, as the Veteran has set forth no specific stressors, there is no need to determine whether there is credible supporting evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). As noted above, establishing service connection for PTSD requires a diagnosis, credible supporting evidence that the claimed in-service stressor actually occurred; and medical evidence linking the two. 38 C.F.R. § 3.304(f); see Cohen, supra. In this case, there is no evidence of a verified stressor and there is no diagnosis of PTSD in the record. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran asserts that he has PTSD that is attributable to service, he, as a layperson, is not competent to offer an opinion as to such questions of medical diagnosis or causation as presented in this case. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As there is no medical evidence of a diagnosis of PTSD that can be based on any independently verifiable in-service stressor, the claim of service connection for PTSD must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hypertension Turning next to the matter of service connection for hypertension, symptoms of hypertension are not noted during service. Service treatment records are negative for complaints or treatment for hypertension. Post-service, , the Veteran was diagnosed with hypertension in 2005. Thus, hypertension was not shown during the Veteran's active service or the year following his discharge from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes there is a lengthy period without treatment (between separation from service in 1980 and the first findings of hypertension in 2005) that weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). This absence of evidence of complaints or treatment for hypertension until 2005, some 25 years after his separation from service, constitutes negative evidence against the claim because it tends to disprove that hypertension was the result of the Veteran's active service. Id. The Board is cognizant that the Veteran is competent to report hypertension symptoms (e.g. headaches, dizziness). See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). To the extent that the Veteran may be asserting that he had continued or ongoing high blood pressure problems since service, these statements are not found to be credible for the purpose of establishing a continuity of symptomatology following service. 38 C.F.R. § 3.303(b); Layno, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Notably, there were no complaints or treatment for hypertension in service. There was also a 25 year absence of complaints or treatment for hypertension after the Veteran's discharge from service in 1980. 38 C.F.R. § 3.303(b); see Maxson, supra. Moreover, the Veteran filed an original claim for benefits in 2001, which did not mention a hypertension claim. The fact that the Veteran has been diagnosed with hypertension is not in dispute, and establishes the element of service connection of current disability. What remains to be determined is whether hypertension is related to his period of active service. Here, there is no such competent evidence that establishes a relationship to an identified injury or other incident of service. The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and his claim for hypertension must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is denied. Service connection for hypertension is denied. REMAND A preliminary review of the record reveals the issue of service connection for hepatitis A is not ready for appellate disposition. Service treatment records show that providers were attempting to rule out hepatitis in 1977. The Veteran sought treatment in 1977 after his wife was hospitalized for infectious hepatitis. A February 1985 report of medical history contains a notation that the Veteran reported a history of hepatitis in 1977. The doctor noted that in September 1997 the Veteran had hepatitis, catheter associated bacteriuria. In a January 2011 statement, the Veteran indicated he was diagnosed with hepatitis A during service. VA outpatient treatment records show a history of positive hepatitis C, but are unclear as to whether he has hepatitis A or any residuals thereof. The Veteran was not afforded a VA examination. The Board finds that a VA examination is necessary to determine whether the Veteran currently has hepatitis A or any residuals thereof, and if so, the etiology. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded the appropriate VA examination to determine the nature and etiology of the claimed hepatitis A. The electronic claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. The examiner should then respond to the following: is it at least as likely as not (a 50% or higher degree of probability) that the Veteran has hepatitis A, or any residuals thereof, that had its clinical onset during active service or is in any way related to his active duty service, to include records dated in 1977 showing exposure to infectious hepatitis. The Veteran's statements regarding the history of in-service injury, the objective medical records from his military service, post service medical records, and any other pertinent clinical findings of record, must be considered and discussed. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. If upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs