Citation Nr: 21062313 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-04 085 DATE: October 7, 2021 ORDER Entitlement to service connection for residuals of frostbite is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have diagnosed residuals of frostbite. 2. A low back disability was not manifested during service and is not shown to be causally or etiologically related to an in-service event, injury or disease. 3. Asthma was not manifested during service and is not shown to be causally or etiologically related to an in-service event, injury or disease. 4. High blood pressure was not manifested during service or within one year of separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. 5. Diabetes mellitus was not manifested during service or within one year of separation and is not shown to be causally or etiologically related to an in-service event, injury or disease. 6. The Veteran does not currently have a diagnosis of PTSD based upon a verified stressor event. 7. The Veteran's diagnosed acquired psychiatric disability other than PTSD was manifested many years after service separation and is not related to disease or injury or other event in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of frostbite have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for high blood pressure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to June 1992 in the United States Army. For his meritorious service, the Veteran was awarded the Army Commendation Medal and the Army Achievement Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has broadened the Veteran's claim from one seeking service connection solely for PTSD to a claim for service connection for an acquired psychiatric disorder, to include PTSD. In March 2019, the Veteran testified at a Board hearing. A transcript of the hearing is of record. The Board notes that the claims were remanded in July 2019 to obtain outstanding service treatment records. The RO's attempt to obtain the records was unsuccessful; however, it did not draft a formal finding of unavailability of treatment records as requested by the Board in the July 2019 remand directives. However, the Board finds that there has been substantial compliance with the July 2019 remand directives as the RO made the requested attempts to obtain these outstanding records and notified the Veteran of the same in March 2021 correspondence. Moreover, it is the Board's determination above that the RO has made all reasonable attempt to obtain these records and that any further attempts to obtain these outstanding records would be futile. As such, there has been substantial compliance with the July 2019 remand. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include diabetes mellitus and hypertension, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Establishing service connection for PTSD requires: (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). Unless PTSD is diagnosed in service and the in-service stressor is related to service, or, when PTSD is diagnosed after service, the in-service stressor is related to combat or to fear of hostile military or terrorist activity or to a prisoner-of-war experience, or to a personal assault, the veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f). In this case, the Veteran's service treatment records are missing. In March 2021 correspondence, the VA notified the Veteran that all attempts to retrieve his service treatment records were unsuccessful and that no further attempts would be made. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). 1. Residuals of Frostbite As noted above, the Veteran's service treatment records are not available for review. However, of significance in this case, is that the post-service treatment records are negative for any findings, treatment or diagnosis of residuals of frostbite. The Veteran's statements as to his condition have been considered. The Board makes no findings as to the credibility of the Veteran's statements; instead, the Board determines that the Veteran is not competent to state that he currently suffers from residuals of his claimed cold injury exposure, as such a determination requires specialized medical knowledge or training. As there is no competent evidence of a current diagnosis of residuals of frostbite, there is no basis on which the claim for service connection for this disorder may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is therefore unnecessary to address any other element of service connection. Accordingly, the appeal on this issue is denied. 2. Low Back Disability, Asthma, High Blood Pressure, Diabetes Mellitus VA treatment records show that the Veteran has received current treatment and/or is diagnosed with chronic low back pain, asthma, high blood pressure and diabetes mellitus. Upon review, the record does not contain any indication of a nexus between the Veteran's chronic low back pain, asthma, high blood pressure and diabetes mellitus and his active duty service. The Veteran was not treated for chronic low back pain, asthma, high blood pressure and diabetes mellitus until many years after his period of service. Also, as there no evidence that either high blood pressure or diabetes mellitus were manifested to a compensable degree within one year of the Veteran's separation from military service. Aside from the Veteran's own claim, there is no evidence suggesting a link between any of his claimed current disabilities and his active-duty service. Absent any suggestion of a nexus to service beyond the Veteran's generalized statements, the threshold for obtaining a VA examination has not been met. Thus, service connection for a low back disability, asthma, high blood pressure, and diabetes mellitus is denied. 3. Acquired Psychiatric Disorder, to include PTSD The Veteran has current diagnoses of PTSD and bipolar disorder. He reports an incident in Germany while was driving back to camp at night in blackout mode when another tank drove towards his vehicle and his vehicle was run off the road. He was horrified and felt lucky that his vehicle did not flip over or hit a tree. He stated that after that near miss incident, he didn't want to go back out at dark knowing that he almost got injured or killed. He reports having nightmares about this incident. The Veteran's potential accident is not he sort of stressor that supports service connection for PTSD. See Diagnostic and Statistical Manual, 5th Edition, American Psychiatric Association (2013) (stating that the diagnostic criteria for PTSD include exposure to actual or threatened death, serious injury, or sexual violation). As this incident did not involve an actual vehicle accident and was essentially a "near miss," it is not capable of verification. While the Veteran does have a PTSD diagnosis, the diagnosis is based on stressors that VA cannot verify; therefore, service connection for PTSD must be denied. The Veteran has also been diagnosed with bipolar disorder, apart from PTSD. The medical evidence of record suggests that the Veteran did not seek treatment/evaluation for any mental health concerns for several years following service discharge. Nothing in these facts suggests a disease or injury incurred in service resulted in a post-service psychiatric illness and no medical or otherwise competent evidence links such disability to service. As above, absent evidence suggesting a nexus to service beyond the Veteran's generalized assertions, the threshold for obtaining a VA examination have not been met. Accordingly, the Board finds that service connection for an acquired psychiatric disorder, other than PTSD, must also be denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Henriquez, 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.