Citation Nr: 21067358 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-52 779 DATE: November 4, 2021 ORDER Service connection for a lower back condition is denied. Service connection for a heart condition, including a heart attack, is denied. Service connection for a stomach condition is denied. Service connection for hypertension, claimed as high blood pressure, is denied. Service connection for a hand condition, including hand surgery, is denied. Service connection for diabetes mellitus, type II (DM) is denied. Service connection for upper extremity diabetic neuropathy is denied. Service connection for lower extremity diabetic neuropathy is denied. REMANDED Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. A compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's back condition, heart condition, stomach condition, hypertension, hand condition, and DM are related to his active duty service. 2. The Veteran's bilateral upper and lower extremity diabetic neuropathy are not related to a service connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition, heart condition, stomach condition, hypertension, hand condition, and/or DM are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09. 2. The criteria for service connection for bilateral upper and lower extremity diabetic neuropathy are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to December 1965. At the outset, the Board notes that the Veteran's service treatment records (STRs) have not been located or associated with his file. A prior Board remand addressed this issue and attempts were made to locate the Veteran's STRs. Those attempts were unsuccessful. See October 2020 DPRIS response. The Court of Appeals for Veterans Claims (Court) has held that 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 carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Thus, VA has a heightened duty to assist. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Back Condition Heart Condition Stomach Condition Hypertension Hand Condition DM In regard to the above referenced conditions, the record shows that the Veteran has a diagnosis of his claimed conditions. See VA and private treatment records. Thus, the issue presented to the Board is if the claimed conditions have a link to the Veteran's active duty service. It is on this point that the Veteran's claims fail. There is no evidence in the file or identified by the Veteran which provides any link between his claimed conditions and his active duty service. The Veteran has not provided any statements which indicate that his claimed conditions originated in service or developed within a year of his service. The Veteran has not provided any indication that he sought treatment for his claimed conditions while on active duty or within a year of his active duty. VA records and private medical records show that the Veteran did not seek treatment for his back condition, heart condition, stomach condition, hypertension, hand condition, and DM within a year of his separation from service and did not relate such conditions to his active duty service. Simply put, there is no evidence of record which provides any indication that any of the Veteran's claimed conditions are related to his active duty service. The Board is aware of the heightened duty to assist the Veteran due to his missing STRs and notes that VA examinations of his claimed conditions were not conducted. However, the Board finds that examinations are not required for the Veteran's back condition, heart condition, stomach condition, hypertension, hand condition, and DM because there is no evidence of continuity of symptoms or a causative link between diagnoses of the Veteran's conditions and an in-service event, so as to trigger the duty to provide a VA examination. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Again, the Board notes that the Veteran, himself, has not provided any statements regarding how his claimed conditions are related to his active duty service or indicating that he was injured or treated for these conditions while in-service. Thus, as there is no evidence linking the Veteran's back condition, heart condition, stomach condition, hypertension, hand condition, and DM to his active duty service, the Board finds that the preponderance of the evidence is against the claims. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Upper Extremity Diabetic Neuropathy Bilateral Lower Extremity Diabetic Neuropathy The Veteran has sought service connection for his diabetic upper and lower extremity neuropathy. Secondary service connection cannot be established if the underlying disability is not service connected. As determined above, the Veteran is not service connected for his DM. Thus, service connection cannot be established on a secondary basis for his bilateral upper and lower extremity neuropathy. In sum, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Acquired Psychiatric Disability In consideration of its heightened duty to assist, the Board finds that remand of the Veteran's claim for service connection for an acquired psychiatric disorder is warranted as the August 2021 VA examination is inadequate for adjudication purposes. The August 2021 examiner did not adequately address the Veteran's statements regarding his in-service stressor, as he stated in his March 2016 statement about his claimed stressors. Additionally, the examiner found that the Veteran did not meet the criteria for PTSD, however VA records indicate that the Veteran carries a current diagnosis of PTSD and is actively treating for his PTSD. Finally, the examiner applied the wrong standard regarding pre-existing conditions in the finding that the Veteran's PTSD pre-existed his service, as there are no STRs which show that the Veteran's PTSD was diagnosed and noted on his entrance examination into service. As such, remand is necessary to conduct a new examination. Bilateral Hearing Loss The Veteran last underwent a VA examination to determine the severity of his hearing loss in 2016. A new examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination by a qualified examiner to determine the nature and etiology of his diagnosed acquired psychiatric disorders, including his currently diagnosed PTSD. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should provide an opinion as to the following: a. Whether there is clear and unmistakable evidence, i.e., evidence for which reasonable medical providers could not differ, that the Veteran had an acquired psychiatric disorder, including PTSD, prior to his service; and if so, provide an opinion whether such a disorder was permanently aggravated during his period of active service. b. If there is not clear and unmistakable evidence that the Veteran and an acquired psychiatric disorder, including PTSD, state whether is it at least as likely as not (a 50 percent probability or greater) that any diagnosed acquired psychiatric disorder, including his currently diagnosed PTSD, had onset in service; or within one year following separation from service or was causally related to service. The Veteran's lay assertions as to onset and continuity of symptomatology, specifically his March 2016 statement in support of claim, should be recorded and considered. The examiner must provide a complete rationale on which his/her opinion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 2. Schedule a VA examination to determine the current severity of the Veteran's bilateral hearing loss disability. The results of audiological testing must include, in numeric decibels, the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz and must provide the speech recognition scores using the Maryland CNC test. The audiologist must also describe the effect of the Veteran's hearing loss on his occupational functioning and daily activities. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.