Citation Nr: 20021828 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-00 837 DATE: March 27, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for left hand laceration scar is granted. Entitlement to service connection for left hand condition is denied. Entitlement to service connection for right hand condition is denied. Entitlement to service connection for right leg cancer is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for right eye laceration scar is remanded. Entitlement to service connection for left shoulder disability is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for left knee sprain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The medical evidence of record shows a diagnosis of PTSD based on a claimed in-service stressor. 2. The Veteran’s current left hand laceration scar is at least as likely as not causally related to his active service. 3. The Veteran’s currently diagnosed bilateral carpal tunnel syndrome, claimed as bilateral hand condition, has not been shown to be at least as likely as not causally related to his service or an incident of service origin. 4. The Veteran’s current right leg cancer has not been shown to be at least as likely as not causally related to his service or an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. § 1110, 1113, 5103, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for service connection for left hand laceration scar have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). 3. The criteria for service connection for left hand condition have not been met. 38 U.S.C. §§ 1110, 1131,5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). 4. The criteria for service connection for right hand condition have not been met. 38 U.S.C. §§ 1110, 1131,5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). 5. The criteria for service connection for right leg cancer have not been met. 38 U.S.C. §§ 1110, 1131,5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to September 1991. This matter came to the Board of Veterans’ Appeals (Board) on appeal from August 2013 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2013 and July 2014 rating decisions, the RO denied service connection claim for right hand laceration scar. The Veteran appealed that decision. Although the issue certified to the Board was for right hand laceration scar, a VA examination revealed that he has a laceration scar on the left hand. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), VA must liberally interpret a veteran’s characterization of his disability when a broad interpretation is more favorable to the veteran. Accordingly, consistent with Clemons, the Board has recharacterized the issue has been recharacterized as one for right hand laceration scar to comport with the record as reflected on the first page of this decision. See Clemons, 23 Vet. App. at 1. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for PTSD. The Veteran is seeking service connection for PTSD. He has reported two in-service stressors while serving in Germany during the fall of the Berlin Wall. In a March 2012 statement in support of PTSD claim, the Veteran reported that he was deployed to Germany during the unrest associated with the fall of the Iron Curtain and Berlin Wall and dissolution of the Soviet Bloc, and there was a great deal of tension between the U.S. and the Soviet Bloc forces. His mission was to slow a Soviet tank attack on West Germany. He stated he was assigned to the 2nd Bn, 3rd Field Artillery and deployed from Ayers Kaserne to battel positions on or near the Fulda Gap, he was subjected to small arms fire, at least three times. The second stressor event involves a personal assault. In a November 2013 stressor statement, the Veteran reported an incident at a bar where he and his fellow service members were attacked at a bar by Turkish men around 1987 or1988. He was struck in his face and left shoulder with a baseball bat. He was treated with seven to eight stiches at a local hospital in Giessen. Service connection for PTSD requires evidence of three elements: (1) a current diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)); (2) credible support of evidence that an in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and an in-service stressor; See 38 C.F.R. § 3.304(f) (2019); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes 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. See 38 C.F.R. § 3.304(f)(1) (2019); see also, 38 U.S.C. § 1154(b) (2012). Similarly, if a stressor claimed by a veteran is related to the 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 the 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 the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3) (2019). Having carefully reviewed all evidence of record, the Board determines that there is sufficient basis to award service connection for PTSD in this case. Unfortunately, most of the Veteran’s service records are determined to be unavailable in this case. However, the available service records confirm that he was serving in Germany in 1988. His military occupation specialty (MOS) was Cannon Crewmember. The Board acknowledges that the Veteran has a current medical diagnosis of PTSD. In July 2013, a VA psychologist, who reviewed the claims file and clinically examined the Veteran noted diagnoses of PTSD and major depression under the DSM-5 PTSD diagnostic criteria. Significantly, the examiner noted that the Veteran’s reported stressor while serving in Germany, specifically taking enemy fire, is related to fear of hostile military or terrorist activity and is adequate to support the diagnosis of PTSD. Here, a VA psychiatrist has found that the Veteran’s reported in-service stressor clearly involved fear of hostile military or terrorist activity and was adequate to support a diagnosis of PTSD. The Board also finds that his stressor is consistent with the places, types, and circumstances of his service. Furthermore, a VA examination report shows a diagnosis of PTSD meeting the DSM-5 criteria, based on a comprehensive clinical evaluation. In summary, one of the stressors claimed by the Veteran is related to his fear of hostile military activity while serving in Germany and a VA psychiatrist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressor. The Board also finds that the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. Therefore, the Board concludes that his lay testimony alone is sufficient establish the occurrence of the claimed in-service stressor and further discussion of the personal assault stressor is not necessary for purposes of his PTSD claim. See 38 C.F.R. § 3.304(f)(3) (2019). Therefore, resolving any doubt in favor of the Veteran, the Board concludes that service connection for PTSD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Entitlement to service connection for left hand laceration scar. A July 2013 VA Hand and Fingers Conditions Disability Benefits Questionnaire (DBQ) shows the Veteran had a laceration scar in the left hand on clinical examination. The examiner noted there was healed laceration over the left thumb without significant impairment or residual problem. The Veteran reported he cut his left hand on glass while in service, and that the skin was sutured, without limitations after. After reviewing all the lay and medical evidence of record, the Board finds that left hand laceration was incurred in service. The Veteran has made competent statements that he cut his left hand in service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board also finds his statements to be credible as there is no reason to doubt the credibility of his statements. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that left hand laceration was incurred in active service; thus, the criteria for service connection for left hand laceration scar have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for left hand condition. 4. Entitlement to service connection for right hand condition. 5. Entitlement to service connection for right leg cancer. The Veteran is seeking service connection for left and right hand conditions and for right leg cancer. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has diagnoses of bilateral carpal tunnel syndrome (CTS) and right leg cancer, the preponderance of the evidence is against finding that the disabilities began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Regarding a nexus between the Veteran’s current bilateral CTS/right leg cancer and an in-service injury, the Board notes that service records do not indicate such a link. Here, there is simply no objective evidence of these conditions until approximately 20 years after the Veteran’s separation from active duty in September 1991. Further, the Veteran has not reported a continuity of symptoms since service. In fact, the earliest evidence of record relating to bilateral hand conditions dates from October 2012, when the Veteran complained of mild intermittent hand numbness for the past one to two years, especially down the 4th and 5th fingers in an ulnar distribution. He stated sometimes the while hand is numb. The VA neurologist noted that the reported symptom was consistent with mild ulnar neuropathies. In January 2013, EMG/NCV findings were consistent with moderate entrapments of bilateral median nerve at the wrist. With regard to the right leg cancer, dysplastic compound melanocytic proliferation on the right lower leg was initially diagnosed on biopsy in October 2011 and was completely excised in January 2012. The absence of any clinical evidence for many years after service weighs the evidence against a finding that the Veteran’s bilateral CTS and right leg cancer were present in service or in the years between service and his later complaints. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the current record contains no evidence of a nexus between the Veteran’s military service and his disabilities. No medical professional has linked any of the Veteran’s diagnoses to service. There is no evidence otherwise linking the current disabilities to service. The Veteran has not reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, that the current disabilities may be related to service. The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that as a lay person, he does not have the expertise to link the current disabilities to an in-service incident. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).; Buchanan, 451 F.3d at 1336. Ultimately, there is no competent medical or lay evidence in support of the Veteran’s claims for service connection. Accordingly, the Board concludes that the weight of the evidence is against the Veteran’s claims of service connection for left hand condition, right hand condition, and right leg cancer. As the preponderance of the evidence is against the claims, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 6. Entitlement to service connection for TBI is remanded. 7. Entitlement to service connection for right eye laceration scar is remanded. 8. Entitlement to service connection for left shoulder disability is remanded. 9. Entitlement to service connection for right shoulder disability is remanded. The Veteran’s service treatment records are determined to be unavailable in this case. Where service treatment records have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran is seeking service connection for TBI, right eye laceration scar, and left (or right) shoulder disability based on an in-service personal assault. In a November 2013 statement, the Veteran reported an incident at a bar where he and his fellow service members were attacked at a bar by Turkish men around 1987 or1988. He was struck in his face and left shoulder with a baseball bat. He was treated with seven to eight stiches at a local hospital in Giessen. In a June 2015 statement, the Veteran reported he arrived in Kirch-Goens, Germany in November 1987 and the assault incident happened between then and the first three months of 1988. The Veteran and fellow service members, M.W., W.F., and F.G. went a German bar, Fledermaus, in Giessen, Germany and were attacked by three Turkish men with baseball bats. The Veteran’s former fellow service members, F.G., who also claims to have been attacked during the assault incident, and C.T., who served with the Veteran during that time in Germany, have submitted written statements describing the circumstances of the assault incident. The Veteran and his former service comrades are competent to attest to the factual matters of which they had first-hand knowledge, such as personal assault events during service. See Layno v. Brown, 6 Vet. App. 465 (1994). Concerning this, the Board also finds their lay assertions of in-service incident to be credible. During the July 2013 VA PTSD examination, the examiner indicated that the Veteran had a diagnosis of TBI based on the Veteran’s reported personal assault incident in Germany. The Veteran related he got stitches over his right eye as a result of a traumatic blow his face. However, the examiner stated that he was not asked to perform neuropsychological testing, therefore could not speculate in the absence of formal data about any type of TBI residual. Also, the Scars/Disfigurement DBQ examination conducted in July 2013 does not indicate whether the Veteran has a right eye laceration scar. Consequently, the Board concludes that VA examinations are necessary to ascertain whether the Veteran currently has any residuals of TBI or right eye laceration from the personal assault in service. With regard to the claims for bilateral shoulder disabilities, the medical evidence of record shows current diagnoses of impingement syndrome of the left shoulder, as evidenced by a July 2013 Shoulder Conditions DBQ, and tendinopathy changes of the supraspinatus of the right shoulder on magnetic resonance imaging (MRI) in July 2017. The record also shows that the Veteran had an on-the-job injury to the left shoulder in January 2011 for which he filed a workers’ compensation claim. Private treatment records show that he worked at a plywood plant and was pushing something along a belt when he felt a burning pain in his left shoulder that progressively worsened over the course the day. He underwent a left shoulder arthroscopy with subacromial decompression and distal clavicle resection in November 2011. In a June 2013 VA treatment session, the Veteran reported that he also injured his right shoulder in 2011 due to repetitive turning sheets of plywood. He stated the right shoulder was also a problem and had been progressively worsening. In an October 2017 VA orthopedic consultation report, however, the Veteran reported he was hit on his right shoulder with a baseball bat back in the 1980s. He stated it improved for a while until 2011 while turning plywood; he had a surgery on his left shoulder for AC degenerative joint disease, but the right shoulder remained painful. While it is not clear whether the Veteran injured his left or right shoulder during the in-service personal assault, the Board finds that a VA medical opinion is warranted to determine the etiology of the Veteran’s bilateral shoulder disabilities, based on his lay assertion of an injury to either shoulder during service. 10. Entitlement to service connection for left knee disability. The record as it stands, lacking a full set of the Veteran’s service treatment records, does not show that the Veteran exhibited a left knee condition during service, but a Knee and Lower Leg DBQ examination performed in July 2013 reported a diagnosis of left knee strain. The report reflects that the Veteran reported he has had left knee pain since military service when running. He stated that he stepped in a pothole and was diagnosed with knee sprain; he returned to regular duty two weeks after the injury. He could not recall any new injury to the knee after separation from his service. The Veteran’s statements recounting an injury to his left knee during service are sufficient, particularly because his service treatment records have not been obtained, to show that his left knee condition may be related to an injury that he sustained during service. Thus, a VA examination is warranted to determine the nature and etiology of the Veteran’s left knee disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). 11. Entitlement to a TDIU is remanded. The claim for a TDIU is inextricably intertwined with the other issues on appeal. See 38 C.F.R. § 19.31 (2019); Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As such, the service connection issues must be adjudicated by the RO prior to the adjudication of entitlement to TDIU benefits. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any updated records from the VA Medical Center (VAMC) in Roseburg, Washington, dated from October 2017 to the present. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current TBI. The claims file must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran has any current TBI that had its onset in service or is otherwise causally or etiologically related to his active service, specifically to include the in-service personal assault incident where he was hit in the head with a baseball bat. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right eye laceration scar. The claims file must be made available to the examiner and reviewed in conjunction with the examination. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran has any current right eye laceration scar that had its onset in service or is otherwise causally or etiologically related to his active service, specifically to include the in-service personal assault incident where he was hit in the head with a baseball bat. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his currently diagnosed left and right shoulder disabilities. The claims file must be made available to the examiner and reviewed in conjunction with the examination. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed left and/or right shoulder disability had its/their onset in service or is/are otherwise causally or etiologically related to his active service, specifically to include the in-service personal assault incident where he was hit on either the left or right shoulder with a baseball bat. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of currently diagnosed left knee disability. The claims file must be made available to the examiner and reviewed in conjunction with the examination. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s currently diagnosed left knee disability had its onset in service or is otherwise causally or etiologically related to his active service, specifically to include the in-service injury involving stepping in a pothole. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. 6. After completing the above, readjudicate the claims. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.