Citation Nr: 21067232 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 009 DATE: November 3, 2021 ORDER Entitlement to service connection for a lung disorder is denied. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a spine disorder is remanded. Entitlement to service connection for a right wrist disorder is remanded. Entitlement to service connection for an eye disorder is remanded. FINDINGS OF FACT 1. The evidence does not reach equipoise that the Veteran had a lung disorder current during the period on appeal. 2. During the period on appeal, the Veteran's PTSD did not more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a 100 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1969. He served honorably in the U.S. Army, including combat service in the Republic of Vietnam during the Vietnam era, and is a recipient of a Parachute Badge, Combat Infantryman's Badge, and Purple Heart. The Board thanks the Veteran for his service to our country. Regarding the Veteran's question as to the combining of ratings (specifically, whether a 30 percent rating and 70 percent rating would combine to form a 100 percent rating), as per VA regulations, ratings are not added, but combined using the Combined Ratings Table in 38 C.F.R. § 4.25 and converted to the nearest number divisible by 10. 38 C.F.R. § 4.25(a). To that effect, the Veteran's current ratings for PTSD (70%), diabetes mellitus (20%), left and right peripheral neuropathy of the femoral nerve (20% each), left and right peripheral neuropathy of the sciatic nerve (20% each), tinnitus (10%), and bilateral hearing loss (0%) are not added to create a 140 percent rating, but are combined to 93 percent using the Combined Ratings Table and converted to the nearest number divisible by 10, resulting in a 90 percent rating. The Board observes that the Veteran included service connection for a right knee injury in his August 2016 Notice of Disagreement; however, this issue was not addressed in the December 2015 rating decisions and, as it was initially raised in correspondence received in July 2015, was not included in the October 2014 claim. The Veteran is encouraged to file a claim on a form prescribed by the Secretary if he wishes to pursue a claim for compensation benefits for this disorder. 1. Entitlement to service connection for a lung disorder is denied. The Veteran contends that service connection for a lung disorder is warranted as he was trapped in a river, resulting in aspiration pneumonia, and was told he would be susceptible to lung problems in the future. The Board finds that service connection for a lung disorder is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Indeed, the U.S. Court of Appeals for Veterans Claims rejected the idea that entitlement to a benefit, without present disability, is warranted simply because of disease or injury while on active service. Id. The requirement for current disability is satisfied when the claimant has a disability at the time a claim for service connection is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). However, subjective complaints of pain in the absence of objective evidence of functional impairment are not sufficient to show a current disability for VA purposes. Id. at 1367-68. The claimant bears the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). However, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The benefit of the doubt doctrine, however, is not applicable based on "pure speculation or remote possibility." Fagan, 573 F.3d at 1287. Rather, the evidence must rise to a state of equipoise for the veteran to prevail. See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009). Indeed, the Federal Circuit rejected the idea that a veteran must be awarded benefits unless VA produces affirmative evidence refuting the claim. See Skoczen, 564 F.3d at 1329. Instead, the Federal Circuit concluded that if zero evidence is produced in support of a material issue, 1) it may be that no evidence exists to support the particular issue, in which case VA can rule against the claim; or 2) VA may have failed its duty to assist. Id. In this case, a review of the Veteran's VA and non-VA medical records shows no lung or pulmonary disability during the period on appeal. Furthermore, while the Veteran stated that his in-service treatment providers told him that he would be susceptible to lung problems in the future and relayed having a "lifetime of trouble" with bronchitis and pneumonia, he has neither claimed nor presented evidence of a lung or pulmonary diagnosis or functional limitation in earning capacity as a result of a lung or pulmonary disorder during the period on appeal. Accordingly, as the evidence does not reach equipoise that the Veteran had a lung or pulmonary disability during the period on appeal, the first requirement for service connection is not met; therefore, the claim must be denied. See Skoczen, 564 F.3d at 1324; Brammer, 3 Vet. App. at 225. 2. Entitlement to a 100 percent rating for PTSD is denied. The Board finds that a rating in excess of 70 percent for PTSD is not warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). PTSD is rated by applying the criteria in 38 C.F.R. § 4.130, DC 9411. The VA Schedule rating formula for mental disorders reads in pertinent part as follows: 100 percent rating (the maximum schedular rating) - Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70 percent - Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability rating to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 441 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. The Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1278, 1380-81 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, in an October 2015 VA examination report, the Veteran reported that his marriage had always been good, though with some financial problems, and that his spouse was supportive of him and visited him in prison regularly. He reported that he always had a lot of friends and had been socially active with his spouse. He reported that he had performed well at his last job prior to his arrest in 2011. He reported that while incarcerated, he held jobs in the kitchen and as a porter and was contemporaneously teaching inmates in the carpentry trade. He reported that he had 18 students who were close to paroling and that he provided them with skills for when they seek jobs in the community. He reported that he slept well, had a good appetite, and walked and exercised daily. He reported that he felt hypervigilant and mistrustful of people, especially in prison. He denied suicidal ideation. The examiner noted symptoms of depressed mood, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. Mental status examination was within normal limits. The examiner noted no other psychiatric symptoms. The examiner noted that the Veteran initially had severe symptoms following service which had dissipated over the years and were currently mild and did not require medication; however, the examiner added that this was mostly because he was in a controlled environment and that it was possible that, with additional stressors, he could decompensate and become more symptomatic. The examiner concluded that, while a psychiatric disorder had been formally diagnosed, symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a March 2016 note, the Veteran reported that when he went shopping, he made sure he knew where the exits were. He reported that he wanted to stay near the exit at movie theaters or would wait for films to come out on television rather than watching them with other people around. He reported that this persistent hypervigilance continued since then and that he felt like danger was present. He reported anger and irritability after returning from combat which easily became rage. The provider noted that these symptoms severely impacted his relationships and appeared to trigger problematic drinking. In an October 2020 mental health consultation, the Veteran reported that he had recently been released from prison. He denied any major concerns with his mood, stating that he felt in control of himself and his emotions. He denied current suicidal ideation or suicidal ideation in the past 30 days. He denied aggression or violence in the past 30 days and stated that he was not a danger to anybody else. He denied auditory or visual hallucinations. He declined VA behavioral healthcare services. The provider identified no imminent safety concerns. During this period, while the evidence shows that the Veteran's PTSD manifested in hypervigilance, suspiciousness, and mistrust, there is no evidence that this was of such severity as to constitute persistent delusions or hallucinations. The Veteran's disability also manifested in chronic sleep impairment; however, there is no evidence that this symptom was so severe as to constitute gross impairment in thought processes or communication. Although the evidence shows that the Veteran's PTSD manifested in anger and irritability as well as depressed mood and disturbances of motivation and mood, these symptoms are not so severe as to constitute persistent danger of hurting others. The Board observes that the October 2015 VA examiner stated that his symptoms were, at the time, mild and did not require medication because he was in a controlled environment but that it was possible that, with additional stressors, he could become more symptomatic. Following his release from prison, he denied major concerns with his mood and reported that he was in control of himself and his emotions, stating that he was not suicidal and not a danger to anyone else. Hence, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against finding that a 100 percent rating for PTSD is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to service connection for a spine disorder is remanded. 2. Entitlement to service connection for a right wrist disorder is remanded. A remand is warranted for these issues as addendum opinions are necessary. In November 2015 VA wrist and thoracolumbar spine examination reports, the examiner concluded that the Veteran's right wrist and spine disorders are unrelated to service as there is no evidence of in-service treatment, and that his symptoms did not start until several years later, per records and his admission. The examiner stated that working 40 years in construction contributed to his current symptoms. However, the examiner's rationale is inconsistent with the evidence of record. Indeed, in the examination, the Veteran had reported that his wrist pain started in 1967 after being in a jeep accident and that his back pain started in 1967 after jump school. He reported self-treating his symptoms with pills and alcohol. He reported that his pain became worse because of his work in the construction industry. Later, in his August 2016 notice of disagreement, he again relayed that his wrist had bothered him all his life since he was blown off of a bridge in a jeep. In an October 2016 statement, he relayed having almost 50 years of an aching back after trekking through the jungle with a heavy rucksack. Accordingly, addendum opinions are warranted. The Board notes the Veteran's request that VA procure his medical records from his service in Vietnam, including in-patient hospitalization at Qui Non, as he was unable to procure his records from the National Personnel Records Center (NPRC). However, in a March 21, 2015 letter, the NPRC informed the Veteran that his military health record is not available at the NPRC as those records are managed by the VA Records Management Center. Further, NPRC had conducted an electronic and physical search of its holdings but was unable to locate medical treatment records from the Army Hospital at Qui Non and Bao Loc in 1967 and 1968. Accordingly, the Board concludes that efforts to obtain the Veteran's Qui Non Hospital inpatient records would be futile. With respect to the Veteran's statement that he may have letters written to him in the hospital or may be able to procure statements from fellow servicemembers regarding the incident in which he was trapped in the jeep in the river and was taken by helicopter to Qui Non or letters from his spouse while he was hospitalized, the Veteran is advised that he may submit such statements or other corroborating evidence. 3. Entitlement to service connection for an eye disorder is remanded. A remand is warranted to afford the Veteran an examination. As an initial matter, the Board observes that in a January 2014 VA form 21-4142, the Veteran authorized and consented to release information from a private provider for various disorders, including his eyes. However, there is no evidence of record that steps were taken to secure these records. The Veteran contends that injuries to his eyes in Vietnam caused pterygiums requiring surgery with a 50 percent possibility of recurrence and cataracts. In a March 2021 note the Veteran complained of right eye blurriness since 2014 and requested evaluation and treatment for cataracts, which had been diagnosed by an outside provider. The Board notes that he was previously scheduled for a September 2015 ophthalmologic examination; however, the examination could not be completed as the Veteran was incarcerated at the time and special equipment necessary for the examination was not available at the correctional institution. April 2020 correspondence received from the Veteran in May 2020 states that he has been released from prison. Accordingly, an examination should be scheduled to determine the nature and etiology of eye disorders current during the period on appeal. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the updated releases necessary for VA to secure private eye treatment records from Kaiser from 2005-2011 identified in a VAF 21 4142 received on January 13, 2014. 2. After the action requested in paragraph 1 is complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the Veteran's back disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) Please identify by diagnosis all current disorders present during the period on appeal, to include degenerative disc disease and arthritis of the lumbar spine as identified in April 2013 private imaging (associated with the record on October 5, 2016). (b.) Is the Veteran's back disorder, to include degenerative disc disease and arthritis of the lumbar spine at least as likely as not (a 50 percent or greater probability) related to jumps from planes and helicopters with packs, to extended treks through the jungle with packs, and/or otherwise related to service? The examiner must take as fact these in-service events as they are consistent with the circumstances of the Veteran's combat service in Vietnam and must address the Veteran's statements of back pain since service. In responding to question (b.) above, please address: (a.) Is there any medical reason to accept or reject the proposition that, had the in-service event occurred, such injury could have led to the Veteran's current disorder? (b.) Please explain whether the Veteran's reports about his in-service and post-service symptoms align with how his current disorder is known to develop. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the action requested in paragraph 1 is complete, please schedule the Veteran for an examination as to the nature and etiology of the right wrist disorder. The Veteran's claims-file must be made available to and reviewed by the examiner. Any indicated tests or studies should be conducted. The examiner is requested to respond to the following: (a.) Please elicit from the Veteran details of his in service right wrist injury, including the symptoms and treatment. (b.) Is the Veteran's right wrist disorder at least as likely as not (a 50 percent or greater probability) related to service, to include his report of right wrist injury after being blown off of a bridge and hospitalized and that he could not write or use his wrist for his entire hospital stay. In responding to question (b.) above, please address: (c.) Is there any medical reason to accept or reject the proposition that, had the in-service event occurred, such injury could have led to the Veteran's current disorder? (d.) Please explain whether the Veteran's reports about his in-service and post-service symptoms align with how his current disorder is known to develop. Solely for the purposes of rendering the requested opinion, the examiner is to treat as fact the Veteran's statements of his right wrist injury in service. The examiner is advised that the Board has made no credibility determinations at this time. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After the action requested in paragraph 1 is complete, please schedule the Veteran for an examination as to the nature and etiology of the eye disorder. The Veteran's claims-file must be made available to and reviewed by the examiner. Any indicated tests or studies should be conducted. The examiner is requested to respond to the following: (a.) Please identify by diagnosis all left and right eye disorders current during the period on appeal. (b.) For each disorder identified, is the Veteran's eye disorder at least as likely as not (a 50 percent or greater probability) related to service? Please consider and address, as appropriate: Small shrapnel wounds to the face in March 1968, documented in the Veteran's military personnel record. An April 24, 1969 service treatment record noting inflamed right pterygium and that he had been seen in July 1968 for a right pterygium. An October 25, 2011 VA optometry note in which the Veteran reported that a grenade had gone off and threw vegetation at his eyes and multiple FB out of eyes from work. A November 21, 2011 ophthalmology note in which the Veteran reported pterygium growth after "shrapnel" from a grenade went into his eyes. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, Associate 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.