Citation Nr: 1815459 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-10 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for loss of use of a creative organ, to include as a result of exposure to herbicides 2. Entitlement to service connection for cold injury residuals of the hands, feet, shoulders, ankles, and knees. 3. Entitlement to service connection for glaucoma, to include as a result of exposure to herbicides. 4. Entitlement to service connection for chloracne, to include as a result to exposure to herbicides. 5. Entitlement to service connection for a right eye disorder. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for a back disability. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for diabetes. 10. Entitlement to service connection for a left foot disability. 11. Entitlement to service connection for a right foot disability. 12. Entitlement to an initial rating in excess of 50 percent for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) that denied claims for service connection for right eye, left knee, back, and bilateral foot disabilities and hypertension and diabetes. This case is also before the Board on appeal from a December 2013 rating decision that granted service connection for PTSD and denied claims for service connection for the loss of loss of use of a creative organ; cold injury residuals of the hands, feet, shoulders ankles and knees; glaucoma; and chloracne. The appeal with respect to PTSD is based on disagreement with the initial rating assigned for this disability, ultimately 50 percent from the effective date of the grant of service connection as assigned by an interim May 2016 rating decision. In July 2017, the Veteran withdrew his request for a videoconference hearing before a Veterans Law Judge scheduled for August 2017. The claim for an increased initial rating for PTSD addressed in the REMAND portion of the decision below requires additional processing and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service in Korea was not at the time or location for which exposure to herbicides is presumed. 2. The weight of the evidence is against a conclusion that a current disability due to the loss of use of a creative organ; a cold injury residuals of the hands, feet, shoulders, ankles and knees; glaucoma, chloracne, right eye disorder, left knee disability, back disability, hypertension, diabetes or left or right knee disability is a result of service; arthritis of the left knee, back or right foot, hypertension, or diabetes are not demonstrated to a compensable degree within one year of service. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of use of a creative organ, to include as a result of exposure to herbicides, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for cold injury residuals of the hands, feet, shoulders, ankles, and knees are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for glaucoma, to include as a result of exposure to herbicides, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for chloracne, to include as a result of exposure to herbicides, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 5. The criteria for service connection for a right eye disorder are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 7. The criteria for service connection for back disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 8. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 9. The criteria for service connection for diabetes are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 10. The criteria for service connection for a left foot disability are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 11. The criteria for service connection for a right foot disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Duty to Assist/Standard of Review Neither the Veteran nor his representative has raised any issues concerning the duty to notify or assist with respect to the claims adjudicated below. 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). In this regard, while the Veteran has not been afforded an examination or medical opinion regarding the claims for service connection for a right eye disability/glaucoma; cold injury residuals of the hands, feet, shoulders, ankles, and knees; hypertension; diabetes; or a left foot disability, such an examination or opinion is not required absent evidence indicating that these conditions may be related to service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed below, the Board has found any report by the Veteran linking these disabilities to service to lack credibility or competency, and there is no indication that a right eye disability/glaucoma; cold injury residuals of the hands, feet, shoulders, ankles, and knees; hypertension; diabetes; or a left foot disability is related to service. In the absence of such indication, an examination or opinion addressing the claims for service connection for these disabilities is not required. Id. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, hypertension, and diabetes, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. 3.309(a), such as arthritis, hypertension, and diabetes. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As an initial matter, the Veteran's service in Korea from January 1973 to January 1974 was not at the time or location for which exposure to herbicides is presumed. See 38 C.F.R. § 3.307(a)(6)(iv) and October 3, 2013, Memorandum reflecting a formal finding of a lack of information to verify in-service exposure to herbicides. As such, the discussion below will not include consideration of whether, as claimed by the Veteran, he has a current disability due to loss of use of a creative organ, glaucoma, or chloracne that is the result of in-service exposure to herbicides. Summarizing the pertinent evidence with the above criteria in mind, the service treatment reports (STRs) reflect the following: Treatment for low back pain in October and November 1973, diagnosed as a slight sprain of the left paravertebral region; treatment for a contusion of the right foot in November 1973; and treatment for left knee pain in April 1974, diagnosed as a mild sprain. The STRs also reflect an x-ray of the knees in May 1974 that was negative and multiple instances of treatment for a penile rash. The STRs are otherwise silent for the conditions for which service connection is claimed, and the April 1974 separation examination is silent for any of the conditions for which service connection is claimed. With respect to a right eye disability, and the Veteran's contentions that the RO ignored evidence of in-service surgery for an eye disability, while treatment to include surgery for a left eye disability is shown in service (service connection for a left eye disability was ultimately granted), there is no evidence of surgery or other treatment for a right eye disability during service. The post service clinical evidence reflect reports from private treatment as follows: November 1977 for a rash on the left arm and left leg of four weeks duration; hallux valgus and a bunion of the right foot diagnosed in 1979; a diagnosis of hypertension from as early as October 1994; reports beginning in November 1997 reflecting surgery for a left knee meniscal tear; and a "new" diagnosis of diabetes mellitus in April 2005. Also of record are reports from VA outpatient treatment beginning in February 2011, and a VA eye examination in that month resulted in diagnoses to include suspected glaucoma. Bilateral glaucoma was ultimately diagnosed. See eg., private ophthalmologist's treatment reports beginning in March 2011. The VA outpatient treatment reports also reflect complaints of erectile dysfunction. See eg., June 11, 2015, VA outpatient treatment report. No complaints or treatment with respect to cold injury residuals of the hands, feet, shoulders, ankles, and knees are demonstrated after service. An examination to address the claim for service connection for a left knee disability was also conducted in November 2013 VA. Review of the claims file is documented by the reports from this examination, as is the Veteran's report of an onset of left knee pain four years after service. The Veteran told the examiner he did not recall any injury or treatment for the left knee during service. He said he was treated by a physician in 1978 who told him his cartilage was "worn out," and that he underwent arthroscopic surgery in the 1980s and 1990s at a private medical facility. X-rays were interpreted as demonstrating arthritis in the left knee, and the diagnosis rendered by the examiner was degenerative arthritis of the left knee. The examiner also provided the following opinion: There is evidence of one complaint of left knee pain for which he was treated in April and May 1974. The Veteran had a contusion to the knee which caused pain with weight bearing. He was seen in follow up and released. His [separation] exam was negative for any left knee abnormality. There is no interim data proximate to discharge. This examiner cannot establish chronicity for this acute condition. There is no evidence indicating a meniscal or cartilaginous condition to the knee. Based on the available data, it is this examiner's opinion that the current left knee condition is less likely than not related to the one acute and transient episode noted in the [STRs] and is less likely than not related to military service. An examination to address the claim for service connection for a back disability was conducted in November 2013. Review of the claims file is documented by the reports from this examination, as is the Veteran's report of longstanding low back pain while on active duty associated with having to carry a 90 millimeter weapon on his back. He reported that he did not seek treatment for his back after service prior to chiropractic care after a June 2013 automobile accident. X-rays were interpreted as showing arthritis, and the diagnosis by the examiner was degenerative disc disease and arthrosis of the lumbar spine. The examiner provided an opinion as follows: There is evidence of one complaint of low back pain in October/November 1973. The [V]eteran was diagnosed with a mild low back strain. He was treated for the acute condition which resolved. He had no radicular symptoms. He was given medication (Parafon Forte). There is no evidence of any further complaints or treatment. His [separation] exam was negative for any spinal abnormalities. No interim data proximate to discharge. This examiner cannot establish chronicity for the acute and transient condition noted in service. Based on the data available, it is this examiner's opinion that the current low back condition is less likely than not related to the one acute and transient back condition noted in service. The Veteran was also afforded a VA skin examination in in November 2013. Again, the reports from this examination document review of the claims file, and the examiner noted that the STRs revealed treatment for an erythematous rash on the penis. The Veteran reported that he had not had a rash on his penis for over one year but did report a one to two year history of acne breakouts in his shoulder and upper back region. The examiner offered the following opinion: Current condition of mild acne of [the] shoulders and upper back is less likely than not related to penile or body rash in service. Rationale: Acne is a pustular lesion rarely occurring on the penile shaft or groin area. The condition in the service was described as a red rash. No pustular lesions noted. Area affected in service is now clear of any skin condition. Another VA skin was examination conducted in March 2016, and the reports from this examination again document review of the claims file. The examiner noted that that the STRs documented a penile rash which was an acute and transient condition that had resolved without residuals or sequela. He specifically noted that the penile rash was not present at the time of discharge or currently and that chloracne was not demonstrated in the STRs and was also not currently present. A VA examination of the feet was conducted in November 2013, with the examiner noting the previously referenced hallux valgus being diagnosed in 1979. An additional diagnosis of degenerative joint disease of the first metatarsophalangeal joint of the right foot was listed. The reports from the examination document review of the claims file, and indicate that the Veteran was seeking service connection for a right foot disability. The history recorded by the examiner included surgery for a bunion of the right foot, with the Veteran reporting no problems with such during service and that he was unsure if he was treated for such during service. He reported that had been doing well since the 1978/1979 surgery. It was noted that x-rays of the right foot had demonstrated arthritis, and the following opinion was rendered: There is evidence in the [STRs] of the [V]eteran having one complaint related to right foot pain following an injury to the great toe while playing football. He had full R[ange]O[f]M[otion] with some pain. X[-rays] were negative. He was noted to have some swelling to the great toe. He was diagnosed with a toe contusion. He was treated for the acute condition which resolved. There is no evidence of any further complaints or treatment. No evidence of any complaints or treatment related to a bunion, hallux valgus, metatarsus primus varus, etc. No diagnosis of these conditions on active duty. The separation exam is negative for any foot conditions or abnormalities. There is no interim data proximate to discharge. The [V]eteran was seen in 1979 for the right foot (several years after discharge). This examiner cannot establish chronicity for the acute and transient right foot condition noted in service. The [V]eteran had an acute condition to the foot which resolved. There is otherwise no objective medical evidence or opinion to support the Veteran's claim that he has a current disability due to any of the conditions alleged to have been incurred in service on appeal that is related to service, and the Board finds the conclusions following VA examinations set forth above to be definitive as to the matter of whether the Veteran has a left knee, back or right foot disability or chloracne that is etiologically related to service, as such are documented to reflect consideration of the Veteran's history, to have been based on the Veteran's electronic medical record, and to have been supported by adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With respect to any actual or implied assertions by the Veteran linking a current disability associated with the disorders at issue to service, the Board finds such assertions to not be credible. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. In this regard, the Veteran made no reference to the disabilities at issue in his initial application for service connection filed for a left eye disorder in April 2009. Such silence in applying for benefits, when the Veteran is otherwise affirmatively speaking, does not support a finding of continuous problems with the disabilities at issue beginning in service. Also weighing against the credibility of any such assertions is the fact that it was well over 30 years after service [February 2011 for left knee, back, and bilateral foot disabilities; hypertension; and diabetes; July 2011 for a bilateral eye disability; and April 2013 for cold injury residuals, glaucoma, loss of use of a creative organ, and chloracne] that the Veteran filed claims for service connection for the disabilities at issue. See Mense v. Derwinski, 1 Vet. App. 354, 356(1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Aside from any credibility issues, to the extent the assertions of the Veteran are being advanced in an attempt to establish that he has a current disability associated with the disorders at issue that is etiologically related to in-service symptomatology or pathology, these attempts must fail. Such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to have appropriate training and expertise, he is not competent to render a persuasive opinion as to such matters. See, e.g., Jandreau, 492 F.3d at 1372; Woehlaert, 21 Vet. App. at 456. While the Veteran is competent to attest to musculoskeletal symptoms, visual problems, and erectile dysfunction from service to the present time, the Board finds the contemporaneous evidence in the form of the silent separation examination; the conclusion following the VA examinations referenced above; and the fact that it was over 30 years after service that the Veteran first filed a claim for service connection for the disabilities at issue to be more probative than any lay assertions made in connection with the instant appeal, and that these facts weigh against a finding of continuity of relevant symptoms since service. As a final matter, as arthritis of the left knee, back or right foot, hypertension, or diabetes is not demonstrated within one year of service, presumptive service connection for these disabilities on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In sum, the Board finds that the preponderance of the credible evidence is against the Veteran's claims for service connection for loss of use of a creative organ; a cold injury residuals of the hands, feet, shoulders, ankles and knees; glaucoma; chloracne; right eye disorder; left knee disability; back disability; hypertension; diabetes; and a left and right foot disability. As such, these claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for loss of use of a creative organ, to include as a result of exposure to herbicides, is denied. Service connection for cold injury residuals of the hands, feet, shoulders, ankles, and knees is denied. Service connection for glaucoma, to include as a result of exposure to herbicides, is denied. Service connection for chloracne, to include as a result to exposure to herbicides, is denied. Service connection for a right eye disorder is denied. Service connection for a left knee disability is denied. Service connection for a back disability is denied. Service connection for hypertension is denied. Service connection for diabetes is denied. Service connection for a left foot disability is denied. Service connection for a right foot disability is denied. REMAND The record reflects multiple reports from VA outpatient treatment for the Veteran's service connected PTSD dated through December 2017 that were not addressed in the April 2017 supplemental statement of the case (SSOC). As such, and as the Veteran has not expressly waived initial consideration of this evidence by the AOJ, an SSOC addressing the claim for an increased rating for PTSD that reflects consideration of this evidence is required. See 38 C.F.R. §§ 19.31, 19.37, 20.1304(c) (2017). Such will be requested in the directives below. In light of the necessity of remanding this matter, and the Veteran's contentions with respect to the adequacy of the April 2016 VA PTSD examination-see Notice of Disagreement" received in July 2016, wherein the Veteran asserted that the April 2016 VA examiner failed to consider the limitations caused by PTSD as delineated by a June 2015 VA mental hygiene note that indicated the Veteran's PTSD resulted in a financial deficit, limited insight, and "chronic" psychiatric symptom, and failed to consider the impact of flashbacks, panic attacks, depression, "intensive" mental health outpatient care provided by VA, unprovoked irritability, difficulty adapting to stressful situations, failure to maintain effective relationships, and impaired judgment-and without casting any aspersions on the adequacy of this examination, this remand will afford the AOJ opportunity to provide the Veteran with a VA psychiatric examination by someone other than the VA psychologist who conducted the April 2016 VA PTSD examination. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination, by a mental health professional other than the VA psychologist who conducted the April 2016 VA PTSD examination, to determine the severity of the Veteran's PTSD. The electronic record, including a copy of this remand, must be made available to the examiner for review. Examination findings should be reported to allow for evaluation of psychiatric disabilities under 8 C.F.R. § 4.130, and the examiner should discuss the extent of any loss of function in daily activities, including work, due to the Veteran's service-connected PTSD. Findings should be in terms of those dictated by the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (2013) (DSM-5). 2. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claim for an increased initial rating for PTSD. To the extent this claim is not granted in full, the AOJ should furnish the Veteran with an appropriate SSOC. After he is afforded an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (2012). ______________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs