Citation Nr: 21067584 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-34 106 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral shoulder condition is denied. Entitlement to service connection for bilateral knee condition is denied. Entitlement to service connection for sleep apnea is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The most probative evidence of record does not show any current shoulder condition to be etiologically related to a disease, injury, or event in service. 2. The most probative evidence of record does not show any current knee condition to be etiologically related to a disease, injury, or event in service. 3. The most probative evidence of record does not show sleep apnea to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. Service connection is not warranted for bilateral shoulder condition. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 2. Service connection is not warranted for bilateral knee condition. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 3. Service connection is not warranted for sleep apnea. See 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to July 1970. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. The Veteran has not raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. In March 2021, the Veteran withdrew his request for a hearing. As such, the Board may proceed to adjudicate the claims, as done below. The Board notes that, although new evidence was received after the May 2017 statement of the case (SSOC) was issued, the evidence is not pertinent to the claims or essentially duplicates evidence already associated with the file. As such, the Board may proceed to adjudicate the claims as done below without prejudice to the Veteran. Finally, the Board notes that a statement of the case (SOC) was issued in January 2020 addressing separate claims. However, as the Veteran did not submit a timely substantive with regard to these issues, they are not currently on appeal before the Board. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, where a claimant asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). Arthritis is listed as a "chronic disease" under 38 C.F.R. § 3.309 (a). 1. Entitlement to service connection for bilateral shoulder condition is denied. The Veteran is seeking service connection for bilateral shoulder arthritis. A review of the Veteran's service treatment records reveals no complaints, treatment, or diagnoses of a disability of either shoulder. Post-service medical records reveal that the Veteran was noted in a February 2014 Disability Benefits Questionnaire (DBQ) as having a right rotator cuff tear. No disability was noted in relation to the Veteran's left shoulder in this DBQ. VA treatment records document complaints of ongoing pain in both shoulders. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Currently, there is no medical evidence of record documenting a disability of either shoulder in service. Moreover, the claims file does not reflect shoulder complaints for several years after service, and there is no medical opinion of record linking a current diagnosis of a disability of either shoulder to his service. Other than making general allegations that he believes he has a shoulder condition because of service, the Veteran has not detailed any in-service injuries or symptoms relevant to this claim, nor alleged continuity of symptoms after service. As such, service connection cannot be granted on a direct basis. The Board has considered the Veteran's contentions that he has shoulder disabilities related to his service. However, the Board finds that the Veteran is not competent to link a current diagnosis of a disability of either shoulder to his service, as he has no medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377. Further, with regard to granting service connection for presumptive diseases under 38 C.F.R. § 3.309 (a), there is simply no objective evidence of record reflecting that the Veteran demonstrated arthritis of either shoulder to a compensable degree within one year of discharge from active duty. A June 1970 Report of Medical Examination noted normal upper extremities on clinical evaluation, and the Veteran denied having a painful or "Trick" shoulder on a June 1970 Report of Medical History. The claims file does not contain evidence of shoulder complaints for several years after service. As such, service connection cannot be granted for arthritis of either shoulder on a presumptive basis under 38 C.F.R. § 3.309 (a). In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claims for service connection for arthritis of either shoulder, and the benefit-of-the-doubt rule is not for application. 2. Entitlement to service connection for bilateral knee condition is denied. The Veteran is seeking service connection for bilateral knee arthritis. A review of the Veteran's service treatment records reveals no complaints, treatment, or diagnoses of a disability of either knee. Post-service medical records reveal that the Veteran was noted in a February 2014 DBQ as having bilateral knee degenerative joint disease. At this examination, the Veteran reported about an 8-month history of pain and discomfort of both knees, worse on the left side. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Currently, there is no medical evidence of record documenting knee problems in service. Moreover, the claims file does not reflect a diagnosis of a disability of either knee for several decades after service, and the claims file contains no medical opinion linking the Veteran's knee disabilities to his service. Other than making general allegations that he believes he has a knee condition because of service, the Veteran has not detailed any in-service injuries or symptoms relevant to this claim, nor alleged continuity of symptoms after service. As such, service connection cannot be granted on a direct basis. The Board has considered the Veteran's contentions that he has knee disabilities related to his service. However, the Board finds that the Veteran is not competent to link a current diagnosis of a disability of either knee to his service, as he has no medical training or expertise. Jandreau, supra. Further, with regard to granting service connection for presumptive diseases under 38 C.F.R. § 3.309 (a), there is simply no objective evidence of record reflecting that the Veteran demonstrated arthritis of either knee to a compensable degree within one year of discharge from active duty. A June 1970 Report of Medical Examination noted normal lower extremities on clinical evaluation, and the Veteran denied having a "Trick" or locked knee on a June 1970 Report of Medical History. Moreover, the Veteran has not consistently asserted that he had symptoms related to either of his knees that began during active duty. Specifically, the Veteran only reported an 8-month history related to his knees at the 2014 VA examination. As such, service connection cannot be granted for arthritis of either knee on a presumptive basis under 38 C.F.R. § 3.309 (a). In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claims for service connection for arthritis of either knee, and the benefit-of-the-doubt rule is not for application. 3. Entitlement to service connection for sleep apnea is denied. The Veteran is seeking service connection for sleep apnea. A review of his service treatment records reveals no complaints, treatment, or diagnoses of sleep apnea. Post-service VA treatment records reveal that the Veteran has been noted as having sleep pattern disturbance. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Currently, there is no medical evidence of record documenting sleep problems in service. Moreover, the claims file does not reflect a diagnosis of a sleep disability for several decades after service, and the claims file contains no medical opinion linking a diagnosis of sleep apnea to service. As such, service connection cannot be granted on a direct basis. The Board has considered the Veteran's contentions that he has sleep apnea related to his service. However, the Board finds that the Veteran is not competent to link a current diagnosis of sleep apnea to his service, as he has no medical training or expertise. Jandreau, supra. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for sleep apnea, and the benefit-of-the-doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. The Veteran asserted in an October 2013 statement that he has a psychiatric disability related to his service in the Republic of Vietnam. Specifically, he reported that mortars were dropped everywhere, and he was exposed to loud sounds from artillery and machine gun fire from gunships. He also reported an incident between September 1968 and March 1969, in which a mortar attack tore off the top of a building and blew up a bus. The Veteran's service treatment records reveal that he reported depression and excessive worry on his October 1967 Report of Medical History. It was noted that he worried about things not significant. The Board notes that a June 1970 psychiatric evaluation diagnosed the Veteran with passive-aggressive personality disorder, severe. In a June 1970 Report of Medical Examination, the Veteran was noted as having passive aggressive personality disorder, severe. In a June 1970 Report of Medical History, the Veteran reported nervous trouble of some sort. The Veteran's DD 214 Form reflects that he served in the Republic of Vietnam from April 1968 to March 1969. His military personnel records reflect that he was noted as being absent without official leave (AWOL) from April 1969 to July 1969, at which time he was dropped from the rolls as a deserter. On January 6, 1970, he was noted as a duty soldier before being dropped from the rolls again as a deserter on January 27, 1970. On June 23, 1970, he was noted again as a duty soldier and was given an undesirable discharge on July 31, 1970. (A post-service Administrative Decision later determined that the Veteran's service would be considered honorable for VA purposes.) In a February 2014 DBQ, the Veteran was diagnosed with unspecified anxiety disorder and alcohol use disorder. It was noted that his alcohol use disorder was in remission. The Veteran reported that his stressors included a mortar round blowing off the top of a building and another mortar round blowing up a bus in Camp Davies in Saigon; feeling terrified of mortar rounds in Bien Hoa; serving in a guard tower during the Tet offensive in Long Binh with a partner who was high on drugs and seeing Viet Cong caught in the wire in the morning; seeing a sign that said "black man this is not your war"; being treated at a Saigon hospital for scratches on his legs; and having to hitchhike to Tan Son Nhut to fly out to the United States. He also asserted that a lot of racial fights occurred overseas, and that Dr. Martin Luther King was shot while he was serving in Vietnam. The examiner concluded that the Veteran's unspecified anxiety disorder is not at least as likely as not due to the claimed in-service stressor. The examiner noted that the Veteran's VA treatment records reflect that his anxiety is mostly related to his job search, finances, and employment. The anxiety does not seem to be linked to the stressors from Vietnam. In support of his claim, the Veteran has submitted a September 2016 private opinion from a Board Certified Trauma Specialist. Upon review of the claims file and interview with the Veteran, he diagnosed the Veteran with PTSD as a direct result of military service in Vietnam. The examiner noted that the Veteran underwent a significant change in his attitude and behavior while he was serving on active duty in Vietnam. During his tour there, his performance went from excellent to unacceptable. In an April 2017 DBQ, the Veteran was diagnosed with schizoaffective disorder, personality disorder, and alcohol use problem. The Veteran reported that his stressor incidents included being told he would not see his home again, seeing a girl with her arms blown off, mortar attacks, being insulted on return from Vietnam, and seeing and counting body "cannisters". The examiner determined that it is less likely than not that a traumatic origin from the Veteran's schizoaffective disorder is probable. The Board finds that additional development should be conducted on this matter. As noted above, the Veteran's service treatment records reflect that he complained of depression and excessive worry upon entrance into service and was ultimately diagnosed with passive aggressive personality disorder, severe, during service. Moreover, a Center for Unit Records Research (CURR) response noted that a review of an Operational Report submitted by the Headquarters, Long Binh Post, for the period ending on October 31, 1968, verifies that Long Binh Post came under mortar and/or rocket attack on August 22, 1968, on September 30, 1968, and on October 19, 1968. The September 30, 1968, attack specifically noted light damage was sustained by 8 vehicles and one building. The October 19, 1968, attack specifically noted that one parked aircraft and 2 buildings were slightly damaged. A record of assignments reflects that the Veteran served at Long Binh posts as of September 1968. The Board finds that the 2014 and 2017 VA DBQ examiners did not provide detailed rationales discussing the Veteran's in-service psychiatric diagnosis and complaints or his verified in-service stressor related to mortar attacks. Moreover, the September 2016 private examiner failed to discuss the other psychiatric diagnoses of record, both in-service and post-service. As such, the Board finds that an additional medical opinion must be obtained on the matter. Finally, on remand, all outstanding VA and private treatment records should be associated with the claims file as well, to specifically include records from First Step, for which the Veteran submitted a release form in 2014. The matters are REMANDED for the following action: 1. Associate with the claims file all outstanding treatment records from the VA St. Louis Health Care System from June 2017 to the present. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any outstanding, pertinent private medical records, to particularly records from First Step. Request all identified records. Associate any records received, including negative responses, with the claims file. 3. Schedule the Veteran for a VA psychiatric examination, to obtain a medical opinion regarding the etiology of any diagnosed psychiatric disabilities, to include PTSD. After a review of the claims file, the examiner should respond to the following: (a.) Diagnose the Veteran with all psychiatric disabilities of any kind, to include PTSD. (b.) Opine as to whether it is at least as likely as not that any of the Veteran's diagnosed psychiatric disabilities began during or were caused or aggravated by the Veteran's active service. (c.) If the Veteran is diagnosed with a personality disorder, opine as to whether it is at least as likely as not that the Veteran has an additional disability due to a disease or injury superimposed upon his personality disorder as a result of his active duty. The examiner should specifically address the Veteran's in-service diagnosis of passive aggressive personality disorder, severe, and the fact that he was noted as AWOL upon his return from Vietnam. The examiner is also advised that the Veteran's reported stressor related to mortar attacks has been verified. A complete rationale for all opinions rendered is required. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.