Citation Nr: 20007683 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-58 715A DATE: January 29, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for a lipoma of the right side of the abdomen is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for residuals of a right ribcage injury other than a lipoma is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to his military service. 2. Resolving reasonable doubt in the Veteran’s favor, his lipoma of the right side of the abdomen is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f). 2. The criteria for service connection for a lipoma of the right side of the abdomen are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 to January 1969. In October 2019, the Veteran testified at a video conference hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for PTSD The Veteran contends that he has PTSD that is a result of his military service. Specifically, he claims that he was assaulted by a fellow service member and that this has resulted in PTSD. See, e.g., Stressor statement, August 2016. He, therefore, believes service connection is warranted. Service connection for PTSD specifically requires that the record show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (requiring mental disorder diagnoses to conform with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) combat status or credible supporting evidence that the claimed in-service stressor actually occurred; (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With regard to a present disability, VA treatment records show that the Veteran has been diagnosed with PTSD. VA treatment record, June 2017. The first elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are met. With regard to an in-service event or stressor, the Veteran claims that he was assaulted by a fellow service member, I.L., when he confronted I.L. about going through papers on the Veteran’s desk. Although this stressor has not been verified, the Veteran has submitted statements from three fellow service members who witnessed either the assault or the aftermath. R.A.I. statement, September 2016; O.S.L. statement, November 2018; C.L.M. statement, July 2019. Additionally, he provided credible testimony regarding the assault at his October 2019 Board hearing. As such, the Board accepts that the claimed assault took place. The second elements of Shedden/Caluza and 38 C.F.R. § 3.304(f) are also met. The remaining question is whether there is a medical nexus between the Veteran’s in-service assault and his current PTSD. The Veteran submitted a November 2019 statement from his private physician. Dr. R.R.H. indicated that since the Veteran’s in-service assault, he has suffered from PTSD. This opinion is supported by the VA treatment records which discuss this incident as the cause of the Veteran’s PTSD. The Board notes that the Veteran has not been afforded a VA examination to more specifically address the etiology of his PTSD. However, in light of the positive evidence and lack of contradictory negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current PTSD is related to his military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). The benefit of the doubt will be conferred in the Veteran’s favor and remand for a VA examination and opinion is not necessary. The service-connection claim for PTSD is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for a lipoma of the right side of the abdomen The Veteran contends that he has a lipoma that is a result of his military service. Specifically, he claims that he developed a bump on his right ribcage following the above-described assault. Stressor statement, August 2016. He, therefore, believes service connection is warranted. With regard to a present disability, a private chest CT showed that the Veteran has a small lipoma of the right oblique muscle. Private treatment record, November 2016. The first element of Shedden/Caluza is met. With regard to an in-service event or injury, the Veteran claims that he was assaulted by a fellow service member, I.L., and that I.L. punched him in the right lower ribcage area. As noted above, the Veteran credibly testified about this assault and his assertions have been corroborated by three fellow service members. R.A.I. statement, September 2016; O.S.L. statement, November 2018; C.L.M. statement, July 2019. The second element of Shedden/Caluza is also met. The remaining question is whether there is a medical nexus between the Veteran’s in-service assault and his current lipoma of the right oblique muscle. The Veteran submitted a November 2019 statement from his private physician. Dr. R.R.H. opined that it was at least as not that the Veteran’s lipoma was caused by the physical trauma from the in-service assault. He noted that the Veteran had suffered from right lower ribcage pain since the time of the assault. The Board notes that the Veteran has not been afforded a VA examination to more specifically address the etiology of his lipoma. However, in light of the positive evidence and lack of contradictory negative evidence, the Board finds that the evidence is, at a minimum, in equipoise regarding the question of whether the Veteran’s current lipoma of the right side of the abdomen is related to his military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The benefit of the doubt will be conferred in the Veteran’s favor and remand for a VA examination and opinion is not necessary. The service-connection claim for a lipoma of the right side of the abdomen is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 1. Entitlement to service connection for OSA is remanded. The Veteran claims that he first experienced heavy snoring in service and that it has continued since separation. See, e.g., Veteran statement, October 2019. Additionally, he claims that his OSA may be related to his now service-connected PTSD and/or lipoma. BVA hearing transcript, October 2019. A May 2016 private examination confirmed a diagnosis of OSA. Private examination, May 2016. Despite this evidence of possible in-service symptoms and service-connected disabilities, a current diagnosis, and the Veteran’s contentions that they are related, he has not been afforded a VA examination for his OSA. This claim must be remanded for a VA examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for residuals of a right ribcage injury other than a lipoma is remanded. As discussed in detail above, the Veteran has been granted service connection for a lipoma of the right side of the abdomen. However, he also claimed additional disability or functional impairment from the in-service assault, including difficulty breathing. Despite these claims and the in-service assault, he has not been afforded a VA examination to determine if there are any other residuals. This claim must be remanded for a VA examination and opinion. See McLendon, supra. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his OSA. The examiner should state whether it is at least as likely as not that the Veteran’s OSA is related to an in-service injury, event, or disease or caused or aggravated (incremental increase) by a service-connected disability, to include PTSD and a lipoma of the right side of the abdomen. In providing this opinion, the examiner should address the Veteran’s contentions of snoring and difficulty sleeping on his side since service and his wife’s statements regarding his snoring since at least 1970. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion 2. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his claimed residuals of a right ribcage injury. The examiner should determine whether the Veteran has or had any residuals or functional impairment from his in-service right ribcage injury, other than his service-connected lipoma. The examiner should specifically address his complaints of difficulty breathing and include any residuals that may have resolved during the appeals period (August 2016 to the present). (continued on next page) For any identified residual, the examiner should state whether it is at least as likely as not related to an in-service injury, event, or disease, to include the in-service assault. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.