Citation Nr: 21005122 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-36 672 DATE: January 29, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. Entitlement to service connection for a right eye disability is denied. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The appellant does not have a low back disability that was caused or aggravated by an injury that was incurred in the line of duty during a period of inactive duty training; the evidence does not reflect that any pre-existing low back disability was aggravated during inactive duty training; the appellant does not contend that he suffered the claimed in-service injury during a period of active duty service or active duty for training. 2. The appellant does not have residuals of a TBI that were caused or aggravated by an injury that was incurred in the line of duty during a period of inactive duty training; the evidence does not reflect that any pre-existing TBI was aggravated during inactive duty training; the appellant does not contend that he suffered the claimed in-service injury during a period of active duty service or active duty for training. 3. The appellant does not have a right eye disability that was caused or aggravated by an injury that was incurred in the line of duty during a period of inactive duty training; the evidence does not reflect that any pre-existing right eye disability was aggravated during inactive duty training; the appellant does not contend that he suffered the claimed in-service injury during a period of active duty service or active duty for training. 4. The appellant does not have an acquired psychiatric disability, to include PTSD, that was caused or aggravated by a fall that occurred in the line of duty during a period of inactive duty training; the evidence does not reflect an acquired psychiatric disability was superimposed on a personality disorder; the evidence does not reflect that any pre-existing acquired psychiatric disability was aggravated during inactive duty training; the appellant does not contend that he suffered the claimed in-service injury during a period of active duty service or active duty for training. 5. Service connection is not in effect for any disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 101, 106, 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a right eye disability have not been met. 38 U.S.C. §§ 101, 106, 1110, 1111, 1131; 38 C.F.R. § 3.303, 4.9. 4. The criteria for entitlement to service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 101, 106, 1110, 1111, 1131; 38 C.F.R. §§ 3.303, 4.9, 4.127. 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training from May 14, 1980, through August 9, 1980, and inactive duty training from March 3, 1984 to March 4, 1984. This matter comes before the Board on appeal from April 2016 and March 2018 Regional Office (RO) rating decisions. In August 2019, the appellant testified at a hearing before the undersigned Veterans Law Judge. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, an appellant 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, or nexus, 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). Active military, naval, or air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21-24); 38 C.F.R. § 3.6. Service connection may thus be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C. §§ 101, 106, 1110, 1131. The advantages of certain evidentiary presumptions that assist appellants in establishing service connection for a disability do not extend to those who claim service connection based only on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. at 470-71; see also Smith v. Shinseki, 24 Vet. App. 40, 48 note 7. Therefore, the presumptions of sound condition at entrance (38 U.S.C. §§ 1111, 1132), of aggravation where evidence shows an increase in severity of a pre-existing disease (38 C.F.R. § 3.306), and service incurrence for certain chronic diseases that manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service (38 C.F.R. §§ 3.307, 3.309) are not available with respect to periods of active duty for training or inactive duty training. Congenital or developmental defects are not diseases or injuries, and therefore they may not be service connected. 38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness does not apply to congenital or developmental defects. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Refractive errors of the eyes are congenital or developmental defects and are not diseases or injuries for compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Therefore, in general, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service. However, service connection may be granted for refractive error of the eye if there was a superimposed disease or injury that created additional disability. Id. The Board notes that the appellant has claimed that he was exposed to Agent Orange during service. (See October 2015 personal statement.) He has not, however, claimed that he has any current disabilities as a result of such exposure. The Board notes that exposure to Agent Orange does not itself constitute a disability. A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States pursuant to 10 U.S.C. § 12401 (“Title 10” service), or his duty must have been performed under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. (See 38 U.S.C. §§ 101 (21), (22)(C), (23)). The full-time duty must be under 38 U.S.C. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6 (c), (d). Allen and Key v. Nicholson, 21 Vet. App. 54 (2007). Hence, for the appellant’s service in the National Guard, only periods of federalized service would qualify for the purpose of VA compensation benefits. The Board notes that the appellant was hit by an automobile on July 25, 1982. The record reflects that the appellant was a member of the Army National Guard of Massachusetts at that time. In an October 2015 personal statement, the appellant reported that this accident occurred when he was in the National Guard, walking in Acushnet, Massachusetts, and was hit by a car. He stated that he “suffered a shattered nose, my right eye was hanging out of the socket, and Mass Rehab says I may have suffered brain injury and PTSD issues.” He noted in a June 2016 statement that he had attached “medical records that describe my fall in the Foxhole and the car accident that caused head, knee, eyes, nose, and brain injuries. This includes memory and anger behavior issues….” The appellant does not currently contend that the car accident occurred during a qualifying period of service. Nevertheless, there was some question at the time of the prior remand as to whether this accident occurred during a qualifying period of service, in part because of the appellant’s own statements. Given that the appellant is documented to have suffered pertinent injuries as a result of this accident, the Board remanded this claim in December 2019 to determine whether the July 1982 accident occurred when the appellant was serving on a period of federalized service. On remand, the appellant himself confirmed that he was not, in fact, on federalized service at the time that he was hit by an automobile. The record contains an August 2020 Report of General Information that summarizes a phone conversation that the appellant had with a VA employee. The August 2020 report notes that the appellant “stated he was in the MA National Guard during that time period but was not on any NG status on July 25, 1982. [The VA employee] asked again if the [appellant] was on NG status on July 25, 1982 [to] which he stated no.” Later in the summary, the VA employee noted that he or she “recapped our conversation by stating that [t]he [appellant] informed me that on July 25, 1982 he was not on a paid status with the MANG when he was struck by an automobile.” Based on the above, the Board finds that the appellant had not been called to federalized service at the time of his accident. Therefore, service connection cannot be established based on injury suffered as a result of this accident. The appellant has attributed the claimed disabilities to his having fallen into a foxhole during service. (See Board hearing transcript, page 15.) He described this injury at his Board hearing as follows: I was emptying the pan of fluid into the foxhole like I was supposed to do to get rid of the liquids so that they (inaudible). There was a board covered with dirt, it snapped. I did a backflip into the foxhole, approximately 4 to 5 feet on my back, (inaudible) hit me off the face. I was then put on light duty for the rest of my – after they sent me to the hospital and nothing further after that was discussed or anything. (See Board hearing transcript, page 4.) Turning to the remaining evidence of record, the appellant’s head, face, neck, and scalp; eyes; and spine were clinically normal, and he was found to be clinically normal psychiatrically, at the time of his January 1980 enlistment examination. The appellant denied any history of, or current eye trouble, head injury, recurrent back pain, depression or excessive worry, or nervous trouble of any sort on his January 1980 enlistment medical history report. A medical record from July 26, 1982, reflects that the appellant underwent CT scans for his nasal and facial sinuses and his lumbosacral spine. A partial CT record from July 26, 1982, notes that “there appears to be air in the orbit itself…. I suspect that there is some hemorrhage into the mucosa of the anterior wall of the antrum.” The report notes that “We have not demonstrated a subdural but we have demonstrated fractures of the left antrum with air in the orbit and in the soft tissues.” It notes that “There is ? of fluid in the right antrum so the possibility of a fracture of the medial wall cannot be excluded.” It further notes that “The septum is deviated to the right but that may be a normal variant.” A July 26, 1982, lumbosacral spine CT report, five views, notes “Medical: Fracture: There is a considerable amount of gas that interferes somewhat with detail but as far as I can ascertain, the vertebral bodies and interspaces are within normal limits.” A nasal and facial bones CT report, six views, notes “Medical: Fracture: Views of the nasal bones fails to demonstrate a definite fracture of either nasal bone but I am suspicious of fractures of the nasal process of the maxillary bones.” It notes that “the right antrum appears normal.” However, it notes that “The left antrum is difficult to interpret. I have not demonstrated an actual break but there is a suspicious area at the junction of the zygoma on the lateral wall of the antrum and the antral space itself is somewhat irregular in outline.” It notes that “I do not feel that I can rule out a blow out type fracture.” A September 1982 letter from a private physician notes that the appellant “has been treated by me for multiple injuries since July 25, 1982. He is now capable of resuming his activities at the National Guards on October 2, 1982.” An October 1982 letter from this same physician notes that the appellant “was admitted to St. Luke’s Hospital on July 25, 1982, with multiple injuries. He sustained a blunt head injury and had to undergo surgery for repair of injury to his nose.” It was noted that “He was discharged from the hospital on July 31st and has been followed by myself and a neurosurgeon.” A “Statement of Medical Examination and Duty Status” notes that the foxhole accident occurred on March 3, 1984, when the appellant was on inactive duty training. It notes that: While [servicemember] was performing his job of preparing the evening meal, he and another [servicemember] were carrying a pot of food and [the appellant] stepped into a concealed fox-hole and fell in on his back [and] the pot fell on him striking him in the nose. There appears to be no willful negligence on the part of either [servicemember] and both were counseled in proper movement of the large pots of food. It also described the nature and extent of the appellant’s injury as “NASAL CONTUSION ? FX.” A March 1986 periodic medical history report reflects that the appellant reported a history of, or current, head injury, broken bones, and recurrent back pain. He denied a history of, or current, depression or excessive worry or nervous trouble of any sort. In response to a question about whether he had ever been a patient in any type of hospital, he reported that he had been hospitalized for seven days at a private hospital in New Bedford after suffering concussions and a shattered nose.” (An October 1987 private treatment record expressly notes that the admission to the identified hospital occurred in connection with the 1982 accident.) In explaining his reported medical history (both in the medical history section and the question regarding hospitalization), it notes that the appellant was “[h]it by a car [in] 1982. Head concussion, fractured nose, right knee injury. Treated at hospital. Nose surgery & right periocular surgery. Right knee lock on occasion. No [illegible], no limitations of movements.” The March 1986 periodic examination report found that the appellant’s spine was clinically normal at the time of examination. A June 1986 letter from the appellant’s private neurosurgeon notes that the appellant underwent a laminectomy at the L5-S1 interspace on the left side in May 1986 because of a herniated disc at the L5-S1 interspace. An April 1987 referral letter from a private chiropractor notes that, in March 1987, the appellant sought examination and treatment at his or her office for low back pain. In terms of history, the chiropractor noted that the appellant was “employed by [a private hospital] alleged that he was injured while lifting a box[.] [H]e turned to the side and felt an immediate pain into his lower back. He left work after this injury and has been disabled since.” In terms of past history, the appellant reported that on 05/10/86 while working as an auto repairman for [a private transmission company] he injured his lower back by lifting a transmission off a shelf.” At that time, a private neurosurgeon diagnosed an L5-S1 disc herniation and performed a laminectomy later that month. He “stated he still had pain in his back and into the posterior aspect of the left leg for one month following surgery…. After the first month he stated the pain eased but took an[] additional two months before the leg pain resolved.” It notes that, in September 1986, the neurosurgeon “examined him and released him to work with a 25 lb maximum lifting restriction.” He “obtained a job with a back-cutting plant which required him to frequently lift 10-15 lbs throughout the day. He stated that this job would occasionally cause mild pain in his lower back.” He reported that his current position with the hospital did not bother his low back, but that he was “moved … into the stockroom which required him to lift heavier boxes” after his neurosurgeon removed the weight lifting restriction. After physical and radiographic examination, a working diagnosis of “Acute, Traumatic L5-S1 IVD [intervertebral disc] syndrome” was made. Conservative therapy was initiated in March 1987, but in April 1987 the appellant “stated he had bent to the left side and had an increase in pain in the center of his back. Since this episode his pain level has been erratic.” Thus, the chiropractor referred him to another doctor for further examination. A May 1999 private medical record notes that the appellant does not think he will be able to continue doing his job as a bus driver “because of a chronic low back problem.” A July 1999 private medical record notes a past medical history of “Back surgery L5/S1. Hit by car (face reconstruction).” A February 2000 private orthopedic evaluation opined that the appellant’s herniated lumbar disc at L5-S1 is not causally related to the January 1999 work injury. An April 2000 Social Security Administration (SSA) disability report notes that the appellant reported that he was first treated by a particular physician for back problems in 1987, and there is no indication whether the appellant sought treatment prior to 1987. On a May 2000 SSA questionnaire, the appellant noted that he has had back problems for approximately 20 years (since 1980). The appellant also noted that he has a “personality disorder due to head injury when hit by a car at age 18. Harder to communicate with people, temper quick to flare.” A May 2000 SSA psychiatric questionnaire, completed by a doctor in connection with an SSA claim, notes that the appellant reported a history of head trauma with loss of consciousness twice at the age of 18 and earlier. It found no evidence of a sign or symptoms cluster or syndrome that appropriately fit with the following diagnostic categories: schizophrenic, paranoid, and other psychotic disorders; affective disorders; anxiety related disorders; or somatoform disorders. It notes to rule out personality disorder, although it does indicate there is no evidence of a sign or symptoms cluster or syndrome that appropriately fits with the personality disorders category. A September 2000 private physician’s consultative examination report from Massachusetts Rehabilitation Commission, which appears to have been conducted in connection with his SSA claim, notes the Chief Complaint as follows: “I have dyslexia, left leg pain and hip pain, and a history of head injury where I was hit by a car.” The record notes that the appellant “is bothered about how he looks, status post severe motor vehicle accident, when he was hit by a car as a pedestrian at age 18. He does not like the way his eyes close and the way his face was reconstructed at the time.” He also “states he has been depressed, not only worried about finances, but previously, during his work. He is unable to state the duration of his depression during the work that he has done.” This record notes that the appellant “has a history of having an EEG during his elementary school years, given he was frequently in fights and had multiple head traumas, dating from when he was a young child, falling out of the window of a truck.” With respect to his past medical history, it was noted that, “In addition to falling on his head as a baby, he was hit by a car as a pedestrian and thrown 20 feet in 1980, with loss of consciousness. He was hospitalized at [a private hospital] for 14 days and has had subsequent facial reconstruction, including repair of a deviated septum and eyelid repair.” It notes that “He was similarly hit by a truck as a boy, and evaluated in the emergency room only, age 8. He denies other acute and chronic medical problems.” The Family and Social History section of the September 2000 report notes that the appellant’s “father kidnapped him and took him to California” when he was a young child. It also notes that he was physically, verbally, and sexually abused by his stepfather. It was noted that “He has previously had nightmares, but denies intrusive memories at this point.” This examiner stated that, in essence, he concurred with the findings of the July and August 1999 psychological testing. (That report itself was obtained by VA as part of the appellant’s SSA records. However, it is very faded and illegible. The Board notes, however, that this record is discussed in a June 2001 private psychological evaluation, which will be described below.) The appellant was given an Axis I diagnosis of dysthymic disorder. He was given an Axis II diagnosis of mixed personality disorder, including prominent antisocial component; learning disorder NOD; and rule out reading disorder. A September 2000 psychiatric review, based on assessment from January 1999 to September 2000, notes a medical disposition that is based on organic mental disorders, affective disorders, and personality disorders. A March 2001 private surgery discharge report notes a final diagnosis of (1) recurrent left L5-S1 disk protrusion and (2) lumbar radiculopathy secondary to the first diagnosis. A June 2001 private psychological evaluation notes that the appellant had been examined by this same individual in July 1999 (which is referenced above). It was noted that, “At that time, it was felt that although he potentially was a bright individual with significant relative strengths and weaknesses, he was suffering from a long-standing significant learning disability. It was also felt at that time he very well may have been suffering from an Organic Personality Disorder which was contributing even more significantly to some of his behavioral and vocational difficulties.” He noted that “A follow-up evaluation at that time was recommended including personality evaluation and assessment of brain damage which confirmed the hypothesis offered in the initial evaluation.” This report notes that the appellant “had a laminectomy about three months ago at L5-S1 and is currently involved in physical therapy.” It was noted that intelligence testing showed areas of deterioration, such as in “conceptual and abstract reasoning abilities both verbally and non-verbally.” It was observed that “Since there does not appear to have been indications of an organic basis which would likely contribute to this deterioration, it appears more likely than this deterioration is of an emotional basis.” It was later noted that “It is felt that this is more likely the result of emotional factors and/or possibly the result of medication and/or pain related to his recent back surgery.” A March 2003 operative report notes that the appellant underwent a left lateral recess, L5-S1, for failed back syndrome. In an October 2015 personal statement, the appellant reported that the 1982 accident occurred when he was in the National Guard, walking in Acushnet, Massachusetts, and was hit by a car. He stated that he “suffered a shattered nose, my right eye was hanging out of the socket, and Mass Rehab says I may have suffered brain injury and PTSD issues.” He noted in a June 2016 statement that he had attached “medical records that describe my fall in the Foxhole and the car accident that caused head, knee, eyes, nose, and brain injuries. This includes memory and anger behavior issues….” On his July 2016 notice of disagreement, he reported that, in the automobile accident, he “received severe face, back injuries, concussion, eye, brain and knee injuries and [has] not been able to work.” He noted that the RO “admitted my injuries occurred on duty but ignored the treatment evidence about my back, deviated septum and pain injuries ongoing ever since. The incident compounded injuries suffered in a car accident while on leave.” The appellant asserted in a June 2016 statement accompanying his notice of disagreement that his “fall in the Foxhole and the car accident … caused head, knee, eyes, nose, and brain injuries.” He also noted that a March 1986 periodic medical history report notes that he was “[h]it by a car in 1982. Head concussion, fractured nose, right knee injury. Treated at Hospital. Nose surgery & [p]eriocular surgery. Right knee lock on occasion. No (unintelligible), no limitations of movement.” In a July 2016 statement, the appellant contended that the foxhole injury “compounded injuries suffered in a car accident while on leave.” In his August 2016 substantive appeal, the appellant noted that the RO “acknowledged the treatment evidence after my fall into a covered Foxhole at Camp Edwards MA but ignored all the evidence of residual injuries documented in the series of surgeries, medications and pain treatments over 32 years. Chronicity and continuity. He also denied service-connection for the fall itself.” A December 2017 private medical consultation record notes that the appellant has “chronic pain of the entire spine and extremities that he attributes to a fall down approximately 5 feet into a fox hole while training with the Army.” A January 2018 private electrodiagnostic report, NCS/EMG, notes that the appellant reported a history of “? Twisting/ Lifting injury at work yrs/a with pain in CXRL E.” The record also contains a January 2018 back conditions Disability Benefits Questionnaire that was completed by a private physician. The doctor noted a diagnosis of “Spondylolysis/isthmic spondylolisthesis.” With respect to his medical history, it notes that the appellant “Fell into foxhole while on duty.” The appellant underwent a VA examination in January 2018. Based on review of the record and interview and examination of the appellant, diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, and lumbar sprain were made. It notes that “The [appellant] states that during service he was draining a heavy pan of food into a foxhole and the foxhole cover broke and he fell in landing on his back.” The appellant reported that “The pan fell on his nose, which was evaluated at medical while his back was not checked. He remembers blood from his nose being everywhere, which is what medical concentrated on.” It notes that the appellant “reports that he started having back pain right away after falling into the foxhole and later had surgeries. Over the years he has had to leave several jobs as a result of ongoing back and knee problems.” Based on review of the record and interview and examination of the appellant, the examiner opined that the back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale, the examiner noted that, “while the [appellant] has a clear memory of the events, there is no evidence found that the [appellant] injured his back on the fall into the foxhole on 03/03/1984. The LOD at the time states that he fell on his back, and that the injury was to his nose. The gist of that is that he was facing up when the pan of food struck him on the nose.” The examiner further noted that “There is no record found of an associated medical visit that documented either a back or a nasal injury.” The examiner noted that the March 1986 medical history report notes that the appellant denied a history of back condition and the spine examination was normal. [The Board notes that the appellant reported a history of back pain, but specified that this pain was in connection with the automobile accident.] The examiner notes that “The [appellant] was then seen 05/10/1986 by his Chiropractor after a back injury sustained in his civilian work. Multiple work related injuries are documented after this.” The examiner opined that “These injures after service are as likely as not the underlying cause of the [appellant’s] current back condition.” The examiner concluded that, “Therefore, the [appellant] does not have a diagnosis of lower back/spinal stenosis that is at least as likely as not (50 percent or greater probability) incurred in or caused by the fall into a foxhole during service.” The appellant provided a more thorough description of this injury at his August 2019 Board hearing. Specifically, he reported that he “did a backflip into the foxhole, approximately 4 to 5 feet on my back.” (See Board hearing transcript, page 4.) The appellant testified at his August 2019 Board hearing as follows: When I was hit by the car, yes, I went to hospital. I was hospitalized. I recovered from that. And then I believe I was discharged from the service while that was occurring, but then I reenlisted, okay. Then the foxhole incident came along two years later, okay. Prior to this, I had no problems with my back whatsoever, okay. I fell in a foxhole. A year later I’m having a major back operation, okay, after falling in the foxhole. He stated that, at the time, he was discouraged from seeking compensation. However, “since then, my back has been nothing but a problem. Every job I’ve had, I reinjured myself.” (See Board hearing transcript, page 4.) For example, he noted that he “slipped on ice at one job and I reinjured my back again.” (See Board hearing transcript, page 8.) He testified that the psychiatric disability may be due to his back pain. (See Board hearing transcript, page 7.) When the appellant was asked whether anyone has diagnosed him with a residual disability of his right eye, he testified “Not really no. They have not. I have had spasms for years. My eye was hanging out when I got hit by the car and then my eye used to do spasms all the time, and as far as I know, no.” (See Board hearing transcript, page 13.) With respect to the TBI claim, the appellant stated that “Mass Rehab told me that I had suffered a traumatic brain injury from the car accident.” (See Board hearing transcript, page 13.) The appellant endorsed the contention that all of his injuries were due to the foxhole accident and were not related to the car accident. (See Board hearing transcript, pages 14-15.) He stated, however, that “The car accident did do things to me with my eye and stuff, but it didn’t have nothing to do with my back, that car.” 1. Entitlement to service connection for a low back disability is denied. As indicated above, because the appellant was on inactive duty training at the time of the foxhole incident, service connection for a back disability may only be granted if the appellant has a back disability that was incurred or aggravated as a result of an injury suffered while he was performing inactive duty training. While the appellant’s service treatment records reflect that he fell on his back into a foxhole during a period of inactive duty training, they do not reflect that he incurred a back disability at that time. In addition, there is no subsequent in-service treatment for a back injury. The appellant’s medical records reflect he has a current low back disability. However, a preponderance of the evidence is against finding that this disability is related to the in-service foxhole incident. As noted above, a January 2018 VA examination report found that it was less likely than not that the appellant had a current back disability that was related to service. The Board finds this opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the appellant. It contains a rationale that discusses the facts of the appellant’s case. Therefore, the Board finds this opinion to be highly probative to the question at hand. As noted above, a December 2017 private medical consultation record notes that the appellant has “chronic pain of the entire spine and extremities that he attributes to a fall down approximately 5 feet into a fox hole while training with the Army.” The Board notes, however, that this statement is merely the physician’s transcription of the appellant’s report of his own history. It does not purport to be a medical opinion from the doctor himself. Therefore, the Board finds that this evidence does not constitute a probative medical opinion in support of the appellant’s claim. The only remaining contrary opinion comes from the appellant himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the appellant does not possess the appropriate expertise to attribute a current back disability, either in whole or in part, to his fall into a foxhole. The appellant has provided no opinion from a qualified medical professional that supports this assertion. The Board notes that the record reflects that the appellant suffered a back injury before service and that he has suffered multiple back injuries after service. Review of the above medical treatment records reflects that all but one of the records pertaining to the appellant’s back list the 1982 incident in which he was hit by an automobile and/or the post-service occupational injuries in the pertinent medical history, but only the December 2017 record mentions the foxhole injury. The Board notes that the December 2017 record completely omits mention of the multiple back injuries that he suffered before and after the foxhole incident. The Board considers it significant that the appellant never mentioned a history of having incurred a chronic back disability in service until December 2017, approximately 33 years following the accident itself. The appellant contends that the fact that he had back surgery one year following the March 1984 accident demonstrates that he did, in fact, injure his back in service. The Board notes again, however, that the records from proximate to the surgery itself mention the car accident and/or occupational injuries but do not mention the foxhole incident. The Board does not find that the timing of the appellant’s surgery demonstrates a link between the March 1984 incident and the current back disability. Nor does the appellant possess the necessary expertise to opine that the back injury he suffered when he was hit by a car in July 1982 was aggravated by his March 1984 fall into a foxhole. Finally, the Board notes that the appellant, in a July 2016 statement, contended that the foxhole injury “compounded injuries suffered in a car accident while on leave.” The Board finds, however, that the appellant does not possess the necessary expertise to opine that the back injury he suffered when he was hit by a car in July 1982 was aggravated by his March 1984 fall into a foxhole. The appellant has provided no opinion from a qualified medical professional that supports his assertion. The appellant has stated that he believes that the record reflects chronicity and continuity of his disabilities since the in-service foxhole incident. (See August 2016 substantive appeal.) The Board notes, however, that such provisions only apply to disabilities that are found to be chronic under 38 C.F.R. § 3.309(a) and is not a presumption available to injuries claimed as having been incurred during a period of inactive duty service. In short, the Board finds that service connection for a back disability is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 2. Entitlement to service connection for residuals of a TBI is denied. The appellant contends that he suffered a TBI when he was hit in the nose with a pan as a result of the fall into a foxhole. The Board finds that the above evidence does not establish that service connection for a TBI is warranted. The appellant’s service treatment records, as discussed above, do reflect that the pan did, in fact, hit him in the nose and caused damage. They do not, however, indicate that he suffered a TBI when he fell into the foxhole. There are no follow-up records, either in service or private, that suggest the appellant was treated for a head injury in the aftermath of the March 1984 in-service injury. The records do, however, reflect that he suffered a significant head injury in the 1982 automobile accident and that he received extensive treatment for this injury at the time of the injury itself and in the subsequent months. (See October 1982 private medical record.) Records from periods following the March 1984 foxhole injury reflect that the appellant himself, when noting that he has a history of head injury, describe his having suffered such injury in the 1982 accident or during his childhood, but none of these records even mentions a March 1984 head injury. (See, e.g., March 1986 periodic medical history report; May 2000 SSA questionnaire; September 2000 private physician’s consultative examination report; October 2015 personal statement; July 2016 notice of disagreement.) As noted above, the appellant has reported that Mass Rehab had diagnosed him with a TBI. The Board notes, however, that the record clearly reflects that the appellant suffered a TBI when he was hit by an automobile in 1982. Mass Rehab did not link the TBI to the foxhole incident. The Board notes that the appellant, in a July 2016 statement, contended that the foxhole injury “compounded injuries suffered in a car accident while on leave.” The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the appellant does not possess the necessary expertise to opine that the TBI he suffered when he was hit by a car in July 1982 was aggravated by his March 1984 fall into a foxhole. The appellant has provided no opinion from a qualified medical professional that supports his assertion. There is no credible evidence that the appellant sustained a TBI in-service so there is no duty to obtain a VA opinion. The appellant has stated that he believes that the record reflects chronicity and continuity of his disabilities since the in-service foxhole incident. (See August 2016 substantive appeal.) The Board notes, however, that such provisions only apply to disabilities that are found to be chronic under 38 C.F.R. § 3.309(a) and is not a presumption available to injuries claimed as having been incurred during a period of inactive duty service. In short, the Board finds that entitlement to service connection for a TBI is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 3. Entitlement to service connection for a right eye disability is denied. The appellant has claimed entitlement to service connection for a right eye disability. When asked at his Board hearing whether he suffers from a current right eye disability, he testified “Not really no. They have not. I have had spasms for years. My eye was hanging out when I got hit by the car and then my eye used to do spasms all the time, and as far as I know, no.” (See Board hearing transcript, page 13.) The appellant himself maintains that any current right eye disability was incurred during his car accident. The injuries suffered at that time were significant enough to require facial reconstruction. The appellant’s service treatment records do not reflect that he suffered an injury to his right eye when he fell into the foxhole. As noted above, the appellant contends, in a July 2016 statement, that the foxhole injury “compounded injuries suffered in a car accident while on leave.” As noted above, however, the appellant does not possess the necessary expertise to provide a probative opinion on this question. The appellant has provided no opinion from a qualified medical professional that supports his assertion. There is no credible evidence that the appellant sustained an eye injury in-service so there is no duty to obtain a VA opinion. The appellant has stated that he believes that the record reflects chronicity and continuity of his disabilities since the in-service foxhole incident. (See August 2016 substantive appeal.) The Board notes, however, that such provisions only apply to disabilities that are found to be chronic under 38 C.F.R. § 3.309(a) and is not a presumption available to injuries claimed as having been incurred during a period of inactive duty service. In short, the Board finds that entitlement to service connection for a right eye disability is not warranted. The appellant does not contend that he suffers from a current right eye disability that is superimposed over a congenital or developmental defect. Therefore, the Board need not further consider this theory of entitlement. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. The appellant contends he suffers from a current acquired psychiatric disability as a result of the in-service foxhole incident. In a December 2015 statement, the appellant attributed his “Post Traumatic Stress Disorder conditions including anger management issues, outburst, anxiety, [and] panic attacks,” in part, to when he “fell in a foxhole and was hit in the head with a ‘squarehead’ which is a large cooking pan.” In his December 2015 statement, the appellant stated that he “will submit the appropriate forms that hopefully include evidence of a 105 shell that e[x]ploded where we were bivouacing [sic] on maneuvers at Camp Edwards in Cape Cod.” The Board notes that the appellant did not submit more specific information that would allow VA to attempt to verify this reported stressor. Therefore, the Board will not further discuss this specific theory of entitlement. Returning to the foxhole incident stressor, as discussed above, the record reflects that the appellant fell into a foxhole while on inactive duty training in March 1984. As noted above, the appellant, as a result of the 1982 automobile accident, has stated that he “suffered a shattered nose, my right eye was hanging out of the socket, and Mass Rehab says I may have suffered brain injury and PTSD issues.” (See October 2015 personal statement.) The Board notes, however, that the September 2000 Massachusetts Rehabilitation Commission report does not mention the foxhole incident. It does, however, discuss the head injury that resulted from the appellant having been hit by a car. The Board must therefore find that the September 2000 report does not, in fact, support the appellant’s claim. The September 2000 report also notes the appellant’s report of depression. However, the appellant linked this depression to work and finances. The diagnosed dysthymic disorder was not linked to the foxhole incident. Likewise, the affective disorder that was noted in the September 2000 psychiatric review record was not linked to the foxhole incident. The above evidence includes findings of personality disorder. A personality disorder is considered a congenital or developmental defect and is not subject to service connection under 38 C.F.R. § 3.303(c) in the absence of superimposed disease or injury. (See also 38 C.F.R. §§ 4.9, 4.127.) There is no indication of a superimposed injury on any in-service personality disorder in this case. With respect to his PTSD claim, there is no indication that the appellant has a current PTSD diagnosis that has been linked to the foxhole incident. As noted above, in a July 2016 statement, the appellant contended that the foxhole injury “compounded injuries suffered in a car accident while on leave.” The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Specifically, the Board finds that the appellant does not possess the necessary expertise to opine that the foxhole injury resulted in an acquired psychiatric disability, or that this incident resulted in a psychiatric disability that was superimposed on a pre-existing personality disorder. The appellant has provided no opinion from a qualified medical professional that supports his assertion. There is no credible evidence that the appellant incurred a psychiatric disorder in-service so there is no duty to obtain a VA opinion. The appellant has also linked his depression to his back pain. (See Board hearing transcript, page 7.) However, because service connection for a back disability has been denied, service connection for an acquired psychiatric disability on a secondary basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has stated that he believes that the record reflects chronicity and continuity of his disabilities since the in-service foxhole incident. (See August 2016 substantive appeal.) The Board notes, however, that such provisions only apply to disabilities that are found to be chronic under 38 C.F.R. § 3.309(a) and is not a presumption available to injuries claimed as having been incurred during a period of inactive duty service. In short, the record does not reflect that the appellant suffers from a current acquired psychiatric disability that has been linked to an in-service injury, nor does it reflect that a current psychiatric disability was imposed on a pre-existing personality disorder. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TDIU 5. Entitlement to a TDIU is denied. A total disability rating based upon individual unemployability due to service-connected disabilities is assigned when service-connected disabilities result in such impairment of mind or body that the average person would be precluded from following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. (Continued on the next page)   In the case at hand, service connection is not in effect for any disabilities. Therefore, entitlement to a TDIU is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.