Citation Nr: 1808474 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-06 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 20 percent for chronic low back strain with history of herniated nucleus pulposis at L5-S1. 3. Entitlement to a compensable disability rating for postoperative residuals of lung surgery related to removal of a benign cyst. 4. Entitlement to a compensable disability rating for bilateral knee scars. 5. Entitlement to a compensable disability rating for shrapnel wounds to right thigh and scrotum. 6. Entitlement to a compensable disability rating for cystic lesion of the mid-back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On the substantive appeal, the Veteran requested a Board hearing; however, in January 2016, he notified VA that he did not plan to attend the hearing and did not request that it be rescheduled, effectively withdrawing the request. The Board notes that the Veteran filed a claim for service connection for PTSD, and has been diagnosed with anxiety disorder during the appeal period. In Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Therefore, the Board has characterized the claim as a claim of service connection for an acquired psychiatric disorder, so all potential psychiatric diagnoses are considered. This case was previously before the Board in May 2016, and remanded for additional development. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a). 2. A current acquired psychiatric disorder, diagnosed as anxiety disorder, did not have its clinical onset in service and is not otherwise related to active duty. 3. The Veteran without good cause did not report for VA examinations that were necessary to evaluate his claims for higher ratings for chronic low back strain with history of herniated nucleus pulposis at L5-S1, postoperative residuals of lung surgery related to removal of a benign cyst, bilateral knee scars, shrapnel wounds to right thigh and scrotum, and cystic lesion of the mid-back. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The claim of entitlement to a disability rating in excess of 20 percent for chronic low back strain with history of herniated nucleus pulposis at L5-S1, lacks legal merit due to the Veteran's failure to report for a necessary examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 3. The claim of entitlement to a compensable disability rating for postoperative residuals of lung surgery related to removal of a benign cyst, lacks legal merit due to the Veteran's failure to report for a necessary examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 4. The claim of entitlement to a compensable disability rating for bilateral knee scars, lacks legal merit due to the Veteran's failure to report for a necessary examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 5. The claim of entitlement to a compensable disability rating for shrapnel wounds to right thigh and scrotum, lacks legal merit due to the Veteran's failure to report for a necessary examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). 6. The claim of entitlement to a compensable disability rating for cystic lesion of the mid-back, lacks legal merit due to the Veteran's failure to report for a necessary examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify. 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"). Regarding the duty to assist, in the May 2016 remand, the Board directed the RO to schedule the Veteran for VA examinations. In May 2016, the Veteran was sent a letter by the RO informing him that the VA medical facility nearest to him would notify him of the date, time and place of the examinations. The VA medical facility records reflect that the Veteran was scheduled for VA examinations in July 2016. However, the Veteran failed to report. The Veteran has not provided good cause for missing the examinations or indicated that he would like to reschedule the examinations. The Board notes that the evidence does not show the Veteran's address changed during the time he was scheduled for the VA examinations. VA treatment records reflect that he received treatment from VA. The Board notes that although the Veteran has not formally withdrawn his appeal, a January 2016 report of contact reflects that he intended to withdraw his appeal. The Court has held that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). As the Veteran failed to report for the examinations without good cause, another examination is not required. The Board will rate his original compensation claim (for service connection) based on the evidence of record. See 38 C.F.R. § 3.655(b). Regarding his claims for increased ratings, these are not original claims, and should be denied based on the Veteran's failure to report for the examinations. As the Veteran was scheduled for VA examinations, the Board finds that there was substantial compliance with the remand orders in regard to the Veteran's claims. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Service connection may be granted for a disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for an acquired psychiatric disorder, generally there must be (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)]; (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). Regarding the diagnosis of PTSD, an interim final rulemaking amended § 4.125(a), effective August 4, 2014, to state that diagnosis of a mental disorder must conform to DSM-5, not DSM-IV. 79 Fed. Reg. 45,093 (Aug. 4, 2014). However, the applicability date of the rulemaking indicates that the revision is not applicable where a case was certified to or pending before the Board on or before August 4, 2014. See id. at 45,093. Since the Veteran's case was originally certified to the Board prior to August 4, 2014, DSM-IV is applicable. As noted above, the Veteran failed to report for examinations scheduled in July 2016. When a claimant fails to report for an examination without good cause scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. 3.655. Regarding PTSD, a June 2009 VA psychiatric treatment record indicates the Veteran reported witnessing the death of local residents and having his convoy attacked by rocks when he was deployed in Somalia in 1992. In a July 2015 statement, the Veteran's representative stated that the Veteran contended that he was involved in an explosion and was injured due to the explosion. He stated that he was in fear for his life during the incident. The Veteran's service personnel records confirm the Veteran served in Somalia from December 1992 to April 1993 and from October 1993 to November 1993. The Board finds the Veteran's statements are consistent with the circumstances of his service and relate to the fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). However, as is addressed below, the medical evidence is against a finding that there is a current diagnosis of PTSD. First, the Board will turn to the Veteran' contentions regarding the specific diagnosis of PTSD. The weight of the competent evidence is against a finding that he meets the criteria for a diagnosis of PTSD as there is no diagnosis of PTSD in the record. A June 2009 VA treatment record indicates the Veteran had a positive PTSD screen. A June 2009 VA psychiatric treatment record indicates the Veteran had an Axis I diagnosis of anxiety disorder. The record noted the Veteran reported serving in the Army in the infantry and as a paratrooper. He was deployed to Somalia in December 1992 for about five months, and redeployed for another two months. He reported witnessing the death of local residents. He stated his convoy was attacked by local residents throwing rocks and slashing their bags. He reported having nightmares twice a month with dreams of being back in the Army. He did not have persistent avoidance of stimuli associated with the trauma. There was no significant impairment in social, occupational, or other important areas of functioning. The Veteran denied having a past psychiatric history. The VA treatment provider noted the Veteran had some exposure to trauma, mild symptoms. As noted above, VA scheduled the Veteran for an additional VA examination in July 2016 to develop the Veteran's contentions, but the Veteran failed to attend the examination. Thus, the weight of the evidence is against a finding that the Veteran has a diagnosis of PTSD under DSM-IV. The Board has also considered the Veteran's assertion that he has PTSD. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet. App. at 469. However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. In this case, the Board finds that the Veteran is not competent to diagnose the presence of PTSD. He is competent to identify and explain the symptoms that he observes and experiences, but psychiatric disorders require more than a simple observation of symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Psychiatric disorders are by their very nature complex disabilities that require specialized training to properly diagnose. The United States Court of Appeals for the Federal Circuit has also explicitly stated that PTSD is not capable of a lay diagnosis. Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"). The Board therefore finds that the Veteran is not competent to diagnose himself with PTSD. In conclusion, the Veteran's treating providers have not diagnosed PTSD. The Board has considered the statements of the Veteran that he has PTSD, but finds he is not competent to render a medical opinion in this instance. Thus, the weight of the evidence of record is against a finding that the Veteran has PTSD in accordance with 38 C.F.R. § 4.125(a). Without a diagnosis of a current disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). Therefore, service connection cannot be granted for PTSD. The Board has considered whether the Veteran's diagnosed anxiety disorder is related to service. There is no competent evidence indicating the Veteran's current anxiety disorder is related to the events incurred while in active service. An April 1995 separation report of medical history reflects that the Veteran denied having depression or excessive worry, or nervous trouble of any sort. The Veteran's service treatment records do not show any complaints or treatment for symptoms of anxiety. The record does not contain any competent medical opinion or evidence establishing a nexus or medical relationship between a current acquired psychiatric disability and events during the Veteran's active service. The Veteran has also not presented, identified, or alluded to the existence of any such medical opinion or evidence. The Veteran is not competent to provide an opinion on the etiology of anxiety disorder as such an opinion is not within the realm of the common knowledge of a lay person. As noted above, VA attempted to schedule the Veteran for a VA examination to obtain additional evidence regarding his psychiatric disorder, but he failed to report for the examination. Therefore, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a current acquired psychiatric disorder, to include PTSD and anxiety disorder. Increased Rating Claims The Veteran has asserted that he is entitled to a rating in excess of 20 percent for chronic low back strain with history of herniated nucleus pulposis at L5-S1, a compensable rating for postoperative residuals of lung surgery related to removal of a benign cyst, a compensable rating for bilateral knee scars, a compensable disability rating for shrapnel wounds to right thigh and scrotum, and a compensable disability rating for cystic lesion of the mid-back. Pursuant to 38 C.F.R. § 3.655(a), when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). The Veteran's claim was remanded by the Board for new examinations in May 2016, and VA examinations were scheduled in July 2016. The Veteran failed to report and the examinations were cancelled. While the actual notice letters of the scheduled VA examinations are not on file, VA records on file indicate that notice was provided to the Veteran by the VA Medical Center. Moreover, the Veteran has not asserted that he did not receive notice of the examinations. There is no indication the Veteran's address has changed. The Board thus concludes that the Veteran was properly notified of the scheduled examinations. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). An August 2016 Supplemental Statement of the Case (SSOC) also informed the Veteran that he failed to report for the scheduled VA examinations, and he has not responded to the SSOC. Regarding whether good cause was shown for the Veteran's failure to report, the Veteran has not offered any explanation. As good cause has not been alleged, the Board finds that good cause is not shown. 38 C.F.R. § 3.655. Here, the Board's remand for examinations was necessary to evaluate the Veteran's assertion of worsening symptoms of his service-connected disabilities since the prior examination in June 2010. Given the above, the Board finds that this claims must be denied pursuant to § 3.655(b) given the Veteran's failure to report for his July 2016 VA examinations without good cause. Thus, based on the requirements of § 3.655, the Veteran's claims for higher ratings for chronic low back strain with history of herniated nucleus pulposis at L5-S1, postoperative residuals of lung surgery related to removal of a benign cyst, bilateral knee scars, shrapnel wounds to right thigh and scrotum, and a cystic lesion of the mid-back, must be denied. 38 C.F.R. § 3.655 . ORDER Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and PTSD, is denied. Entitlement to a disability rating in excess of 20 percent for chronic low back strain with history of herniated nucleus pulposis at L5-S1, is denied. Entitlement to a compensable disability rating for postoperative residuals of lung surgery related to removal of a benign cyst, is denied. Entitlement to a compensable disability rating for bilateral knee scars, is denied. Entitlement to a compensable disability rating for shrapnel wounds to right thigh and scrotum, is denied. Entitlement to a compensable disability rating for cystic lesion of the mid-back, is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs