Citation Nr: 1821165 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 14-24 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for right foot condition. 4. Entitlement to service connection for hypertension. 5. Entitlement to an increased rating for pterygium, currently noncompensably disabling. ORDER Entitlement to service connection for diabetes mellitus, type II, is dismissed. Entitlement to service connection for an acquired psychiatric condition is denied Entitlement to service connection for right foot condition is denied. FINDINGS OF FACTS 1. At a July 2017 Travel Board hearing, the Veteran indicated that it was his intent to withdraw the appeal for entitlement service connection for diabetes mellitus. 2. The Veteran does not have an acquired psychiatric disability for VA purposes. 3. The preponderance of the evidence reflects that the Veteran's right foot hallux valgus is not etiologically related to any incident of service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement service connection for diabetes mellitus have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for an acquired psychiatric condition have not been met. 38 U.S.C. § 1101, 1110, 1131, 1154 (West 2014); 38 C.F.R. § 3.303, 3.304 (2017). 3. The criteria for service connection for a right foot condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1968 until April 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal the rating decision dated in November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to service connection for hypertension and entitlement to an increased rating for pterygium, currently noncompensably disabling are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to service connection for diabetes mellitus, type II The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (4). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant, at the July 2017 Travel Board hearing indicated that it is his intent to withdraw the appeal for entitlement to service connection for diabetes mellitus. (See Board Hearing Transcript page 3). Thus, there remain no allegations of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to service connection for diabetes mellitus. Entitlement to service connection for psychiatric disability The Veteran contends that he has PTSD related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has an acquired psychiatric condition, to include PTSD that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has an acquired psychiatric condition related to his military service. The Veteran's service treatment records (STRs) do not reflect a diagnosis of, or treatment for a mental condition. An essential element of a claim for service connection is evidence of a current disability. The Veteran was provided a VA mental health examination in October 2011. The examination report noted the Veteran with no current mental disorder diagnosis. VA medical records reflect that upon screening, the Veteran was negative for PTSD and depression. (See October 2013, October 2012, and June 2011 VA medical records). Based on the foregoing, the Veteran does not have an acquired psychiatric condition for VA purposes. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of psychiatric disabilities for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As explained above, the Veteran must have a disability at the time of the claim. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has an acquired psychiatric condition for VA purposes. Thus, service connection for such cannot be granted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 (West 2014), and 38 C.F.R. § 3.102 (2017), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to service connection for right foot condition The Veteran contends that he has a right foot condition related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has right foot condition that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has a right foot condition related to his military service. The Veteran's service treatment records (STRs) reflect the Veteran with bilateral pes planus upon entering active service. (See March 1968 Report of Medical Examination). However, the STRs do not reflect in-service complaints of, or treatment for, a right foot condition. The Veteran was afforded a VA medical examination in June 2011. The Veteran was provided with a diagnosis of symptomatic right foot hallux valgus. The examiner concluded that the Veteran's right foot hallux valgus is not caused by or the result of his military service. The examiner explained that hallux valgus is short of any trauma to the foot. The examiner further noted that the Veteran denied experiencing any trauma to the right foot. The examiner continued to explain that hallux valgus is a degenerative phenomenon and is not related to any in-service incidents and is not related to pes planus. The Board acknowledges that the Veteran has been previously diagnosed with bilateral pes planus upon entering service. However, the pes planus was not diagnosed in the June 2011 VA medical examination. Additionally, the medical evidence reflects that the Veteran's claimed symptoms associated with his right foot are related to his current diagnosis of right foot hallux valgus. (See June 2011 VA medical examination). Based on the above, the Board finds service connection for a right foot condition is not warranted. The Board notes that the Veteran may sincerely believe that his right foot condition is causally related to active service. However; the most probative clinical etiology opinion with regard to the Veteran's claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the foot for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 (West 2014), and 38 C.F.R. § 3.102 (2017), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REMAND The Board regrets further delay in this case, but finds that a remand is required to satisfy VA's duty to assist. Entitlement to service connection for hypertension The claims file does not reflect that the Veteran has been provided a VA medical examination or medical opinion in regard to entitlement to service connection for hypertension. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. However; in order for the duty to assist to be triggered, the following must be present: (A) competent lay or medical evidence of a current disability, persistent, or recurrent symptoms of a disability, (B) evidence establishing the Veteran suffered an event, injury, or disease or symptoms of a disease, and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159 (c)(4)(i). The Board finds that the requirements have been met in order to trigger the VA's duty to assist for the reasons stated below. The claims folder reflects that the Veteran has been treated for, or complained of, hypertension. Furthermore, the Veteran contends that his hypertension may be associated with an event, injury, or disease during his active military service. In this case, without adequate medical examinations and medical opinions in regard to the Veteran's claimed condition on appeal, the Board finds the current evidence to be insufficient to decide the claim. Therefore, a VA medical examination and medical opinion is required by VA's duty to assist the Veteran in developing evidence to substantiate his claim to service connection for hypertension. Entitlement to an increased rating for pterygium, currently noncompensably disabling In regard to the claim for an increased rating for pterygium, the Veteran has asserted that his service-connected eye disability has gotten worse during the pendency of this appeal. The last VA examination on record was conducted in July 2011. Based on the Veteran's statements that his eye disability has gotten worse, the Board finds that another VA examination is warranted. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for hypertension and his eye disability, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Schedule the Veteran for a VA medical examination with the appropriate provider in regard to the claim to service connection for hypertension. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's hypertension is related to, or aggravated by, his military service. Any opinion provided should include a complete rationale. 3. Schedule the Veteran for a VA eye examination in regard to the claim for an increased rating for pterygium. The examiner is requested to assess the current severity and all symptoms related to the Veteran's pterygium. The claims file should be made available for the examiner to review and the examination report should reflect that such review was accomplished. All pertinent findings should be reported. 4. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any of the benefits sought on appeal is not granted, issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters 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 that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Copy mailed to: [The American Legion] Department of Veterans Affairs