Citation Nr: 1817237 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 11-01 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right upper extremity radiculopathy. 2. Entitlement to service connection for an acquired psychiatric disorder including depression and posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for a bilateral foot disability including talipes valgus, pes cavus, and Morton's neuroma. 4. Entitlement to service connection for migraines. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J.T.Stallings, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1985 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. These matters were previously remanded in a July 2015 Board decision for additional development. The additional development has been complete and jurisdiction has returned to the Board. The issue of service connection for migraines is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current diagnosed disability of radiculopathy of the right upper extremity. 2. The Veteran does not meet the criteria for an acquired psychiatric disorder including depression and PTSD that is related to military service. 3. The Veteran does not have a bilateral foot disability including talipes valgus, pes cavus, and Morton's neuroma that had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity radiculopathy are not met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for an acquired psychiatric disorder including depression and PTSD are not met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 3. The criteria for service connection for a bilateral foot disability including talipes valgus, pes cavus, and Morton's neuroma are not met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor the 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 duty to assist argument). II. Service Connection 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, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). In order to establish a right to compensation for a disability, a veteran must show: (1) the existence of a present disability; (2) the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. IIa. Service Connection - Right Upper Extremity Radiculopathy The Veteran does not have a current diagnosed disability of right upper extremity radiculopathy. The Board notes that the Veteran did have a diagnosis of right upper extremity radiculopathy during service due to an in-service April 2004 motor vehicle accident. After leaving service and filing a claim in October 2006, the Veteran was afforded a VA examination in August 2007. However, during the examination, he physically threatened the examiner, and the examiner immediately terminated the examination prior to the physical examination being complete. This is documented in the examination report. In the November 2010 statement of the case, the RO informed the Veteran of this fact and that as a result, "There is no current medical evidence showing a diagnosis of cervical radiculopathy in the right upper extremity." The Veteran has not expressed a willingness to cooperate with a new examination. The lack of full cooperation on the part of the Veteran is essentially tantamount to a failure to report for the examination. Although he was physically present, his physical threat to the examiner did not allow for the proper conducting of this examination. When this occurs, the regulation is clear; when the issue involves "any other original claim," the claim shall be denied. See 38 C.F.R. § 3.655(b). This is not an original claim for service connection where VA decides the issue based on the evidence of record. Even if this was an original claim, the evidence of record currently does not establish a current disability. Accordingly, for these reasons, the claim for service connection for cervical radiculopathy of the right upper extremity is denied. As an aside, the Board notes that a February 2010 VA examination report shows that neurologic examination of the upper extremities was normal. IIb. Service Connection - Acquired Psychiatric Disorder The Veteran claims he has a psychiatric disorder related to service. There is no nexus between the Veteran's diagnosed acquired psychiatric disabilities and his military service. Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The DSM cannot be used "as a basis for rejecting the Veteran's favorable medical evidence as to the sufficiency of a stressor or the adequacy of the Veteran's symptomatology." Id. As such, in order to make a finding that the Veteran in this case did not have a valid PTSD diagnosis, the Board must clearly articulate its reasons for finding that the PTSD diagnosis was not made in accordance with the DSM requirements. The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In regard to an in-service stressor, if it is established through military citation or other supportive evidence that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If a stressor claimed by a veteran is related to that veteran's 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "[F]ear 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. See id. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). In first addressing the PTSD, the Veteran did not have a diagnosis of PTSD until April 2010. This diagnosis came from a therapist visit; however, nothing was mentioned about the Veteran's military service in regard to this diagnosis. At the time, the Veteran reported his major stressors to be a mound of credit card debt and the divorce from his spouse. Regardless, this diagnosis triggered the need for the Veteran to have a new VA examination, as the previous VA examination for his PTSD claim in August 2007 concluded that he did not have PTSD and instead diagnosed the Veteran with a depressive disorder not otherwise specified that was not related to his military service. This was the diagnosis noted on both examinations despite the Veteran having combat experience. It has been verified that the Veteran served in combat in Somalia, Honduras and Iraq. At the 2007 exam, although the Veteran reported two nightmares and one flashback regarding his combat experiences, the examiner noted that the Veteran also denied most other PTSD symptomology. At his exam, he denied any physical reactions associated with his intrusive memories of his combat. In fact, the Veteran also denied any feelings of detachments, hypervigilance or problems with concentration. The VA examiner opined that the medical testing coupled with the Veteran's statements did not meet the criteria for a diagnosis of PTSD. The Veteran was given a new VA examination in October 2010. In regard to the Veteran's combat experience, at the Veteran's first VA examination he explained that he did not have an ongoing issue with his combat and in fact enjoyed combat, even the killing. The Veteran also denied any feelings of intense fear hopelessness or horror. However, at the Veteran's second examination, he now described having nightmares and intrusive thoughts about his combat service. Even with this noted symptomology, the examiner wrote that the Veteran still did not meet the necessary DSM criteria. The Veteran claimed recurrent and intrusive thoughts and distressing dreams of the in-service stressors particularly his time in Somalia. He also stated that he was having distress due to items or people that reminded him of the traumatic event. The Veteran noted difficulty falling and staying asleep, irritability and outburst of anger, difficulty concentrating and exaggerated startle response. Every symptom was reported as chronic, happening frequently and with a severe intensity. The 2010 examiner stated that there was an over endorsement of symptoms suggestive of PTSD and upon objective examination the Veteran exhibited no distress and no signs of sleep deprivation. The examiner noted the Veteran exhibited intact attention and concentration and no issue with determination of place and time. The examiner wrote that the difference in explanation of his symptoms from the first VA examination to the second was that his combat experience went from fun and fine to now "numb", but was unable to tell the examiner what numb represented. Based on this information, the examiner found that the Veteran did not meet the DSM diagnostic criteria for PTSD based on his reactions to the traumatic experiences. Also, the Board notes that the Veteran originally filed the claim as a depression claim. He has a current disability of a depressive disorder, but as noted above, an examiner found it is not connected to his military service. The 2007 examiner specifically stated that the depressive disorder was not related to traumatic events during service. "It is the [claimant's] general evidentiary burden to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease [related to] service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board takes note of the Veteran's lay statements as to the symptomology he was experiencing. However, the "Board is not required to accept all lay statements as definitive proof." King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board also notes that the Veteran has not provided a supporting medical opinion establishing a service-connected disability. More so, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the question of whether the Veteran's symptomology meets the criteria for an acquired psychiatric disorder including PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). This disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds the medical evidence, especially the VA examinations, more probative to the deciding of this claim. As such, the preponderance of the evidence of record weighs against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder including depression and PTSD, and the claim is denied. IIc. Service Connection - Bilateral foot disability The Veteran's claimed feet disabilities were not related to or caused by his military service. The Veteran filed a claimed for talipes valgus of the feet. The only mention of this condition is on an "Active problems" list in the Veteran's post-service treatment records. The Veteran's military records are silent to any diagnosis, symptoms or treatment of this disability or any other foot disability. Talipes valgus is defined by the Webster's Medical Dictionary as a congenital deformity of the foot. As talipes valgus is a congenital deformity, this raises the question of whether service connection is permissible for this claimed disability. The regulations note that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation pertaining to service connection. See 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin; as long as the evidence as a whole establishes that the conditions in question were incurred or aggravated during service within the meaning of VA laws and regulations. See VAOPGCPREC 82-90 (July 18, 1990).Therefore, even if the Veteran has a diagnosis of talipes valgus, it cannot be service connected as it is as congenital disease. As far as the Veteran's other foot disabilities, there is no nexus to service for a foot disability. Again, the Veteran's service treatment records are silent to any foot disability, symptoms or treatment including his entrance and separation exams. In regard to the Veteran's 2007 diagnoses of Morton's neuroma and pes cavus, there is no competent evidence of a nexus between either or both of these diagnoses and service. The evidence weighs against a finding in favor of service connection for the Veteran's foot disabilities. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral foot disorder including to include talipes valgus, pes cavus, and Morton's neuroma. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right upper extremity radiculopathy is denied. Entitlement to service connection for an acquired psychiatric disorder including depression and PTSD is denied. Entitlement to service connection for foot disability including talipes valgus, pes cavus, and Morton's neuroma is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran's claim on appeal. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). The Board notes that the Veteran's service treatment records document various headaches. It is unclear to the Board whether or not the Veteran's current migraine disability he is claiming is a symptom of one of his already service-connected disabilities or is a separate disability within itself. Therefore, as the Board needs additional information prior to the adjudication of this claim, the claim must be remanded. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination including any and all testing and imagery deemed necessary by the examiner. The claims file, including a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to provide the following opinions. The examiner must include a complete and thorough rationale, with reference to relevant evidence of record as appropriate, for any and all conclusions reached: a). Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has a current disability of headaches or migraines? b.) If so, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's headaches or migraines disability had its onset in service or is otherwise related to service? * The Veteran had active duty service from January 1985 to July 2005. * His service treatment records are in VBMS. There are seven entries that contain the Veteran's service treatment records. Six entries are entitled "STR - Medical" and one entry is entitled "STR - Dental." They all have a receipt date of 11/15/2013. c.) If any current headache or migraine disability did not have its onset in service, is it at least as likely as not (i.e. a 50 percent probability or more) that the Veteran's disability is caused by any of the Veteran's service-connected disabilities (listed below)? * The Veteran is service connected for (i) obstructive sleep apnea; (ii) urinary urgency; (iii) status post bilateral L4-L5 decompression and discectomy; (iv) supraspinatus impingement syndrome of the right shoulder; (v) fibromyalgia with polyarthralgia and chronic fatigue; (vi) cervical degenerative disc disease with facet joint disease; (vii) bilateral tinnitus; (viii) chronic sinusitis; (ix) gastroesophageal reflux disease; (x) surgical scar in the lumbar area; (xi) right lower extremity radiculopathy; (xii) temporomandibular joint dysfunction; (xiii) degenerative joint disease of the right and left hips; (xiv) bilateral sensorineural hearing loss; (xv) allergic rhinitis; (xvi) incomplete erectile dysfunction; and (xvii) periodontitis. d.) If the headaches or migraines disability is not caused by the Veteran's service-connected disabilities, is it at least as likely as not that the Veteran's headaches or migraines disability is permanently aggravated by any of the service-connected disabilities? (The definition of aggravation is below.) The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the headaches or migraines disability (i.e., a baseline) before the onset of the aggravation. 2. Then, readjudicate the Veteran's claim on appeal. If the benefit sought remains denied, provide the Veteran with a supplemental statement of the case (SSOC). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 (2012). ______________________________________________ A, P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs