Citation Nr: 1818462 Decision Date: 03/27/18 Archive Date: 04/04/18 DOCKET NO. 08-00 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for corneal scar of the left eye, with retained foreign body (left eye disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2002, May 2003, and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In a February 2015 Board decision, the Board denied entitlement to service connection for PTSD based on the fact that the Veteran had no diagnosis of PTSD and found the Veteran had not submitted a timely substantive appeal with respect to his claim for an increased rating for his left eye disability. The Veteran appealed the February 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2016 Memorandum Decision, the Court reversed the Board's finding that the Veteran failed to timely appeal the matter of a compensable rating for service-connected left eye disability. The Court also found that the Board provided an inadequate statement of its reasons or bases for relying on the private opinions of record to deny the claim for service connection for PTSD. In March 2017, the Board remanded this issue for compliance with the November 2016 Memorandum Decision. The remand indicated, in part, that the Veteran should be afforded a VA examination to determine if the Veteran warrants a current diagnosis of PTSD. The Veteran was provided a VA examination in August 2017 and the examiner found that the Veteran did not have a current diagnosis of PTSD. The March 2017 remand also directed that the Veteran should be afforded a VA examination for his left eye disability. The remand order acknowledged that the Veteran was incarcerated, and directed the RO to comply with the requirements of M21-1, Part III, Subpart iv, Chapter 3, Section F for obtaining an examination of an incarcerated veteran. On remand, the RO satisfied the requirements of the M21-1, Part III, Subpart iv, Chapter 3, Section F. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Throughout the course of the appeal for the Veteran's claim for service connection for PTSD, he has also reported that he has anxiety and depression that were related to his period of service. In this regard, the Board recognizes that the Court has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, the Board observes that the RO has already addressed the Veteran's claims for service connection for depression and anxiety in an October 2004 rating action wherein the RO denied service connection for depressive anxiety disorder. After the Veteran was provided notice of his appellate rights, he did not appeal the rating decision. Accordingly, the October 2004 rating action is final. 38 U.S.C. § 7105 (2012). Nevertheless, as noted by the 2012 and 2015 Board decisions, given that the Veteran has continued to maintain that he has depression and anxiety related to his period of service, the Board finds that the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder other than PTSD, to include depression and anxiety, has been raised by the record, but has not been adjudicated but the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). In addition, the Board notes that the Veteran stated in his January 2018 correspondence that he filed a claim for clear and unmistakable error (CUE) regarding the 1984 rating decision in February 2010. The Veteran's February 2010 claim stated that the 1984 rating decision, which is a final rating decision, was incorrect because it relied on an inadequate VA examination and did not consider the appropriate applicable diagnostic code in evaluating the Veteran's disability. The Veteran submitted an addition statements alleging CUE regarding the 1984 rating decision in December 2015. As such, the issue of CUE has been raised by the record, but has not been adjudicated but the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD. 2. The Veteran did not attend a necessary VA examination by reason of incarceration in conjunction with his claim for an increased disability rating for his for corneal scar of the left eye, with retained foreign body. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not all been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Entitlement to a compensable rating for corneal scar of the left eye, with retained foreign body is denied on the basis of failure to report for a VA examination. 38 C.F.R. § 3.655(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection, PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (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). The Board finds that there is no competent evidence in the record showing that the Veteran has a diagnosis of PTSD. The Veteran contends that he has PTSD due to an in-service incident. In his December 2002 stressor statement, he indicated that during service, while participating in a military field training exercise, he was shot in the left eye. According to the Veteran, the serviceman who shot him did it on purpose and he considered it a personal assault. The Veteran reported that after his discharge, he had nightmares and flashbacks, and was irritable and angry. Therefore, it is his contention that he currently has PTSD that is related to his period of service, specifically to the in-service shooting incident. The Veteran's service treatment records are negative for any complaints or findings of PTSD. The records show that in April 1983, the Veteran underwent a separation examination. At that time, he was clinically evaluated as "normal" for psychiatric purposes, providing some evidence against this claim. In August 2002, the Veteran filed a claim for service connection for PTSD. In this case, the evidence of record is negative for a diagnosis of PTSD. The Veteran was afforded a VA examination for PTSD in August 2017. The examiner stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria. The examiner considered the Veteran's reported stressor of getting shot in service, as well as his reported symptoms, including recurrent distressing dreams, sleep disturbance, feelings of detachment, persistent inability to experience positive emotions, and depressed mood. However, after reviewing the record and considering the Veteran's reported symptoms, the examiner found that there was insufficient evidence to warrant the diagnosis of PTSD. The examiner also found that the Veteran did not have any other mental disorder that conforms with the DSM-5 criteria. The Board finds the VA examiner's opinion the most probative evidence of record. The examiner took into consideration the entire record, including the Veteran's service and post-service treatment records, as well as the Veteran's reported stressor and reported symptoms. The examiner provided adequate rationale for finding that the Veteran did not have a diagnosis of PTSD, specifically, that the Veteran did not meet Criterion C and I, which are required for a diagnosis of PTSD under DMS-5. In addition, the Board notes that there is no other competent evidence of record finding that the Veteran had a diagnosis of PTSD. The Veteran underwent private forensic psychological evaluations in November 2002, May 2003, and June 2003. None of these evaluations found that the Veteran had a diagnosis of PTSD. Although these evaluations are less probative than the VA PTSD examination as they were provided to determine whether the Veteran was mentally fit to stand trial, they are relevant to the extent that they do not indicate a current diagnosis of PTSD. The Veteran's medical records from the Arkansas Department of Corrections, dated from 2004 to 2016, do not indicate a diagnosis of PTSD. All of this evidence described above provides probative evidence against the claim that the Veteran has a diagnosis of PTSD. The Board acknowledges the Veteran's contention that he currently has PTSD that is related to his period of service. However, whether the Veteran meets the required diagnostic criteria for PTSD is a complex medical question, and is not within the realm of knowledge of a lay person or determinable by observation with one's senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran's statement is not competent evidence and not probative. The claims file does not contain any competent evidence indicating a diagnosis of PTSD. Without a current diagnosis of PTSD, the first requirement for establishing service connection for PTSD has not been met. Therefore, the Board finds the preponderance of the evidence is against the claim for service connection for PTSD. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. II. Increased Rating, Left Eye Disability As noted above, the March 2017 Board remand directed the RO schedule the Veteran for a VA eye examination consistent with the procedural requirements in M21-1, Part III, Subpart iv, Chapter 3, Section F. The M21-1 states that when an examination of a incarcerated Veteran is required, the RO or Veterans Health Administration (VHA) Medical Examination Coordinator must confer the with prison authorities to determine whether the Veteran should be escorted to a VA medical facility for examination or examined at the prison by VHA personnel. M21-1.III.iv.3.F.2.d. However, the M21-1 also notes that some State laws restrict the movement and access of prison inmates, and therefore the above noted options may not be possible. In such cases, the RO must document all efforts made to schedule and examination and VHA compensation clinics are required to document that they have made substantial attempts to schedule and conduct the examination. If VHA has exhausted examination efforts to no avail, VA will treat a Veteran's inability to attend a necessary examination by reason of incarceration as the equivalent of a failure to report. M21-1.III.iv.3.F.2.d. A VA eye examination was requested for the Veteran in June 2017. However, the RO stated that the eye examination was unable to be conducted because the Veteran is incarcerated. The RO noted that the Department of Corrections will not transport the Veteran to a VA facility, and it does not have the required equipment to conduct the examination in-house. As such, the Board finds that the requirement of M21-1.III.iv.3.F.2.d. have been met, and therefore the Board will treat the Veteran's inability to attend a necessary examination by reason of incarceration as the equivalent of a failure to report. When a veteran fails to report for an examination, the claim shall be decided in accordance with 38 C.F.R. § 3.655(b) or (c). When the examination was scheduled in conjunction with a claim for increase and the veteran fails to report without good cause, the claim shall be denied. 38 C.F.R. § 3.655(b). As noted above, the Veteran's inability to attend a necessary examination by reason of incarceration is treated as the equivalent of a failure to report. M21-1.III.iv.3.F.2.d. Incarceration does not satisfy the criteria for good cause for failure to report to the examination as the Veteran's incarceration was already considered in the attempt to schedule the VA examination. The Board finds that VA complied with the required procedure for examinations of an incarcerated veteran and made a reasonable effort to afford the Veteran a VA examination in compliance with the March 2017 remand directive. As the Veteran failed to report for an examination scheduled for his claim for an increased rating for his left eye disability, and he has not shown good cause for failing to appear, his claim must be denied. Indeed, in light of the use of the word "shall," 38 C.F.R. § 3.655(b) does not leave the Board discretion in adjudicating a claim for increase where the Veteran has failed to report for a scheduled examination without good cause shown. The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an increased evaluation for his left eye disability, and the claim must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for PTSD is denied. Entitlement to a compensable disability rating for corneal scar of the left eye, with retained foreign body, is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs