Citation Nr: 1807880 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-24 741A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The appellant had active duty for training from December 1984 to May 1985, with subsequent service in the Army Reserve. This appeal comes to the Board of Veterans Appeals (Board) arises from rating actions by the Regional Office (RO) in Detroit, Michigan. In April 2013, the RO denied claims for service connection for a chronic back condition, anxiety, and depression. In January 2014, the RO denied claims for service connection for PTSD, and tinnitus. To avoid any prejudice to the appellant, the Board has recharacterized the acquired psychiatric issue broadly, as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In November 2017, the appellant was afforded a videoconference hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). FINDING OF FACT The appellant does not have an acquired psychiatric disorder, to include PTSD, tinnitus, or a back disability, due to his service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, tinnitus, and a back disability, were not incurred as a result of the appellant's service. 38 U.S.C. §§ 101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 3.306, 3.307, 3.309, 3.6 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant asserts that he has an acquired psychiatric disorder, to include PTSD, tinnitus, and a back disability, due to his service. During his hearing, held in November 2017, he testified to the following: in 1986, he was shot in the torso. He was not on active duty at the time, nor was he travelling to or from duty. However, he believed that his gunshot wound had been aggravated by his duty in the Reserves. His therapist has also told him that he has PTSD due to his gunshot wound. With regard to tinnitus, he began having tinnitus after qualifying for marksmanship with his M-16 rifle at some point between 1986 and 1988. In written testimony, the appellant has stated that he was shot in the fall of 1986, and that after returning to his Reserve unit, his gunshot wound was aggravated during his retention examination, at which time he still had staples in his stomach from surgery. He stated that he also had back pain during that examination, but that he was required to do push-ups and sit-ups, with aerobic exercise being substituted for a two-mile run. He reported having an informal medical evaluation board in which he signed a waiver, and thereby was retained in the Army Reserve. See appellant's statement in support of claim (VA Form 21-4138), dated in February 2013. In another statement, the appellant reported that he was shot in October 1986. See appellant's statement, dated in April 2012. Lay statements of record include a statement from BL.S., dated in April 2012, which shows that the author asserts that the appellant was shot in October 1986. In April 2011 and May 2013, the appellant filed his claims. In April 2013 and January 2014, the RO denied the claims. The appellant has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Applicable regulations provide that 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. See 38 C.F.R. § 3.304 (f). VA's General Counsel has concluded that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); see also VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). That is because section 8052 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), Public Law No. 101- 508, § 8052, 104 Stat. 1388, 1388-351, amended the status governing line of duty determinations and the definition of a "service-connected" disability. 38 U.S.C.A. §§ 101 (16) and 105(a). VA General Counsel precedent opinions are binding on the Board. Brooks v. Brown, 5 Vet. App. 484 (1993). There is a clear distinction between individuals who serve on active duty and those who only serve on active duty for training (ACDUTRA). An individual seeking VA disability compensation based only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and be entitled to disability compensation benefits. In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the Court stated that the placement of the burden of proof on a veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from disease or injury incurred in the line of duty. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6(a), (c). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty or ACDUTRA, or from injury (but not disease) incurred or aggravated while performing inactive duty for training (INACDUTRA). Id.; see also 38 U.S.C. §§ 106, 1110; 38 C.F.R. § 3.303(a). ACDUTRA includes full time duty performed by members of the Armed Forces Reserves or the National Guard of any state. 38 C.F.R. § 3.6(c). To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Further, the burden to establish "veteran" status for a claim based on a period of ACDUTRA is on the appellant. Paulson; Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that she is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The appellant's service treatment records during his period of active duty for training between December 1984 and May 1985 do not show any relevant complaints, findings, or diagnoses. In a memorandum, dated in October 2013, the RO determined that no additional service treatment records were available, and that further attempts would be futile. See 38 U.S.C. § 5103A (b)(3) (2012); 38 C.F.R. § 3.159 (c)(2) (2017). A report from the Sacred Heart Rehabilitation Center notes treatment between June and July of 1988, specifically, inpatient substance abuse treatment. Private treatment records from the Henry Ford Hospital, covering treatment provided between February and March of 1990, shows treatment for chemical dependency. They note a history of a gunshot wound in 1987. The appellant reported that he was currently using alcohol, marijuana, and cocaine. His current exercise was weightlifting. He had undergone a detoxification program in 1988. A private treatment record from the Clinton Eaton Community Mental Health Board, covering treatment between February and June of 2000, notes diagnoses of alcohol dependence, and cocaine dependence. The report also notes a 20-year history of substance dependence. A private treatment record from the Southland Counseling Center, dated in June 2000, notes a history of crack cocaine use between the ages of 20 and 32, ending in an arrest. Private treatment records from the Sparrow Health System (SHS), dated in 2005, show treatment for smoking cocaine that the appellant feared may have been laced with another substance. The appellant's diagnosis was cocaine abuse. SHS records, dated in February 2012, show treatment for back pain. It was noted that, "He states that he has had this for years and feels it is associated with a prior GSW (gunshot wound)." An X-ray revealed a foreign body overlying the right medial posterior lung base, and a history of a gunshot wound. Other private treatment records, dated in 2012, show treatment for complaints of hearing loss, with a history of military and occupational noise exposure, and back pain. The appellant's diagnoses included high frequency sensorineural hearing loss, PTSD, and unspecified backache. A statement from J.T., LMSW, dated in April 2013, notes the following: the appellant has been treated in outpatient therapy since September 2012 for symptoms associated with PTSD. The appellant was a victim of a gunshot wound during an attempted robbery and assault while he was in the Army Reserve. The constant reminder of a bullet lodged in his chest, with pain, began to take its toll. He eventually turned to drugs and alcohol to self-medicate. Reports from the Social Security Administration (SSA), show that in April 2012, the SSA denied the appellant's claim for disability benefits. The appellant was noted to have severe impairments that included a retained foreign body in his chest, chronic back pain, and bilateral high frequency hearing loss. There was a distant history of a gunshot wound. A VA hearing loss and tinnitus disability benefits questionnaire (DBQ), dated in July 2013, shows that the examiner stated or indicated the following: the appellant's claims file had been reviewed. The appellant reported constant ringing tinnitus in both ears since being shot in the chest during a robbery in 1986. The examiner concluded that tinnitus was not as least as likely as not caused by or due to military noise exposure. The examiner explained that hearing loss is the most likely cause of tinnitus. The greater the hearing loss, the greater the possibility of one experiencing tinnitus. Furthermore, only seldom does noise cause a permanent tinnitus without causing hearing loss (citations omitted). Therefore, based on the fact that the appellant had normal hearing as recently as 2011, 26 years after separation from the military (i.e., verified ACDUTRA), this appellant's alleged tinnitus was not at least as likely as not caused by, or a result of, military noise exposure. Undated X-rays are of record that appear to show a bullet lodged in the appellant's thoracic spine. In a memorandum, dated in January 2014, the RO made a formal finding of a lack of information required to corroborate a stressor associated with a claim for service connection for PTSD. See VA Adjudication Manual, M21-1MR, Part IV.ii.1.D.16.a. As an initial matter, the Board finds the appellant is not an accurate historian. As previously noted, the appellant is shown to have a long history of substance abuse, to include use of crack cocaine. A report from J.D., from a state Department of Corrections, states that the appellant was incarcerated between April 1994 to September 1996, "when he escaped," and from September 1996 to June 1999. He was discharged from supervision in August 2001. See also documentation associated with his SSA application (Form SSA 3369-BK) (in which the appellant reported that he was incarcerated between 1994 and 2000). Although he testified at his hearing that he has had tinnitus since firing weapons during training in the 1980s, at his July 2013 VA examination he stated that his tinnitus began after he was shot in the chest during a robbery in 1986. Thus, the Veteran has been inconsistent in his reports as to when the ringing actually began. Accordingly, the Board finds that the appellant is not a credible historian. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). However, given the conclusion that the appellant is not credible regarding the onset of his tinnitus, the Board finds that his statements alone are insufficient to establish the onset of tinnitus during a period of active duty for training. The Board further finds that the claims must be denied. There is no evidence to show that the appellant sustained any relevant injury during his ACDUTRA between December 1984 and May 1985, nor is there any evidence to show that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during any other period of ACDUTRA, or an injury that was incurred in or aggravated by a period of INACDUTRA. See 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. The appellant has never identified any treatment for any relevant injury, trauma, or condition, during a specific period of ACDUTRA or INACDUTRA. In this regard, to the extent that he has asserted that he received an informal medical evaluation board, there is no assertion that this report contains any evidence of incurrence or aggravation of an injury due to ACDUTRA or INACDUTRA, and in any event, no such report is of record. The RO has determined that there are no other available service treatment records. The appellant bases his claim for a back disability on the proposition that he had a back condition that was related to his gunshot wound, and which was aggravated by service in the Army Reserve. No specific period of ACDUTRA or INACDUTRA has been claimed as the cause of the aggravation. It appears that he further argues that an acquired psychiatric disorder was aggravated his back pain. Finally, he argues that tinnitus was incurred due to exposure to loud noise during ACDUTRA or INACDUTRA. However, there is no relevant line of duty report of record, and no evidence of treatment for any of the claimed disabilities to show that he became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or an injury that was incurred in or aggravated by a period of INACDUTRA. There is no competent opinion of record in support of any of the claims. The only competent opinion is found in the July 2013 VA examination report, and this opinion weighs against the claim for tinnitus. In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of the ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. The burden to establish "Veteran" status for a claim based on a period of ACDUTRA is on the appellant. Paulson; Smith; Donnellan. Accordingly, service connection is not warranted for any of the claimed conditions based on any period of ACDUTRA or INACDUTRA. To the extent that the VA progress notes show that the appellant has post-service diagnoses involving alcohol and substance abuse, compensation may not be awarded for these conditions, even if such were shown during service. See 38 U.S.C. §§ 105, 1131; 38 C.F.R. § 3.301 (c). With regard to the appellant's own contentions as to his claims for psychiatric and back disabilities, although lay persons are normally competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The claimed disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). With regard to the claim for tinnitus, although may persons are normally considered to be competent to report the presence of a wide variety of symptoms, to include tinnitus, the appellant has been found not to be a credible historian. The appellant's medical records have been discussed. The Board finds this evidence to be the most probative evidence of record on these issues, and therefore this evidence is accorded greater weight than the appellant's assertions. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed conditions due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The appellant has not identified any relevant records that have not been associated with the claims file, and it appears that all pertinent records have been obtained. As previously noted, in an October 2013 memorandum, the RO determined that no additional service treatment records were available, and that further attempts to obtain them would be futile. In addition, in a statement dated in April 2012, the repository for the Mt. Carmel Hospital stated that no records could be located for the appellant. The appellant has been afforded an examination in association with his claim for tinnitus, and an etiological opinion has been obtained. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. Id. at 1381 (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). Based on the foregoing, the Board finds that the appellant has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include PTSD, tinnitus, and a back disability, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs