Citation Nr: 21069415 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-22 933A DATE: November 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), depression, anxiety and sleep and mood disorders, is denied. REMANDED The claim of entitlement to service connection for right and left fallen arches and heel pain is remanded. The claim of entitlement to service connection for right and left plantar fasciitis is remanded. The claim of entitlement to service connection for bilateral hearing loss is remanded. The claim of entitlement to service connection for bilateral tinnitus is remanded. The claim of entitlement to service connection for sinusitis is remanded. The claim of entitlement to service connection for acid reflux is remanded. FINDING OF FACT There is no medical evidence of record diagnosing PTSD, and the Veteran does not currently have any other psychiatric disability. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, including PTSD, depression, anxiety and sleep and mood disorders, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty (AD) from June 1972 to December 1976. Thereafter, beginning in 1982 and continuing through 2005, he served in the National Guard. His claims come before the Board of Veterans' Appeals (Board) on appeal of a May 2013 Department of Veterans Affairs (VA) rating decision. The Veteran and JR, a fellow serviceman, testified in support of these claims during a virtual hearing held before the undersigned Veterans Law Judge in May 2021. Entitlement to service connection for an acquired psychiatric disability, including PTSD, depression, anxiety and sleep and mood disorders The Veteran seeks service connection for a psychiatric disability, including PTSD, depression, anxiety and sleep and mood disorders, on a direct basis as initially manifesting in 1972, during AD, when he was training. He claims that, in September of that year, he experienced stressors during boot camp when he got punched in the stomach by drill instructors for drinking coffee in the barracks and kicked in the groin by Lynch, a drill instructor who, having injured recruits, was later removed from service. He recalls other stressors as well, including: a senior drill instructor making him march to the top of a 25-foot structure into nasty water; the Infiltration Course, where he had to crawl while charges were blown and live ammunition was fired above him; and expert swimming qualification training, during which his drill instructor pushed his head under water when he tried to get out of the pool (feared drowning). The Veteran further claims that he experienced additional stressors following boot camp, including in 1975, when he was serving as a structural mechanic and a crane operator pulled the wrong lever, dropping a transmission onto the top of the helicopter where he had just been working (feared physical injury and death), and post-AD, in 1990 or so, while serving in the Michigan National Guard and a soldier was crushed between two trucks, suffering severe internal injuries. During his hearing, the Veteran described another stressor, one that occurred during AD in January or February 1973, in Buford, South Carolina, when he was working in a shop in a hangar as part of a Harrier squadron. Elsewhere in the hangar, there was a soldier working on a seat inside a plane. He forgot to put seat pins in, resulting in the seat being ejected from the plane. His brains were splattered all over the ceiling. The Veteran indicated that he didn't see the incident but was there when the soldier was taken away. JR, the Veteran's shop leader at the time, too testified regarding the ejection seat incident. He recalled the soldier dying due to his failure to put the safety pins in the ejection seat. He indicated that the seat exploded, sending the soldier through the roof. He also testified regarding another ejection incident during an above-field deployment. A Harrier was hovering and lost control, tipping the plane to the right. A soldier ejected upside down in his seat into a swamp, and the plane crashed. Pieces of the aircraft were returned to the hangar on a flatbed truck, and these pieces, on which was flesh, were traumatizing to JR. He recalls the Veteran being there that day. JR indicated that he had a copy of the crash report telling the tailfin of the aircraft, the pilot, that there was a fatality. The Veteran later confirmed during the hearing that he was present the day of the crash. As well, the Veteran testified that he had not seen a doctor for his PTSD but believed he was manifesting symptoms of PTSD, depression and anxiety. He described incidents that had occurred over the years, during which he became angry, broke dishes, ran out of the house, argued with his wife, threw a lamp against the wall, caused his family members to cry, and drove down the sidewalk in his car (family members were passengers), chasing bicycling kids who had insulted him. He acknowledged that he needed to see a doctor to obtain a psychiatric diagnosis. The preponderance of the evidence is against this claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. "Active military, naval, or air service" includes any period of AD, active duty for training (ACDUTRA) during which the individual concerned was disabled from disease or injury incurred in or aggravated in the line of duty, and inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury incurred in or aggravated in the line of duty or an acute myocardial infarction, cardiac arrest, or cerebrovascular accident. 38 U.S.C. §§ 101(21)-(24), 106; 38 C.F.R. § 3.6. Establishing entitlement to service connection generally requires: (1) evidence of a current disability; (2) medical, or in certain circumstances lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Establishing entitlement to service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, a veteran's lay testimony, alone, may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). If a claimed stressor is related to a veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, a veteran's lay testimony, alone, may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Here, although his representative mentioned the significance of combat service at the hearing, the Veteran did not follow up by alleging, and his service personnel records do not show, that, during service, he engaged in combat with the enemy. According to his service personnel records, although he served overseas for one year beginning in 1975, he was stationed in Japan. In any event, the existence of a current disability is the cornerstone of a claim for VA disability compensation, and such disability must be diagnosed prior to determining whether it relates to service. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran mentioned during his hearing, and medical evidence of record confirms, he has not sought mental health treatment or been diagnosed with any psychiatric disability, to include PTSD. His representative and the undersigned Veterans Law Judge explained to him the importance of seeing a doctor for such a diagnosis, and the Veteran indicated that he would follow-up by doing so. Since then, however, he has not submitted any evidence establishing the existence of a psychiatric disability. The Veteran's assertions that he has been manifesting symptoms of such a disability thus represent the only evidence of record of a current psychiatric disability. Lay evidence may be considered competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, although the Veteran is competent to report irritability and outbursts of anger as they are lay observable, without medical training, he is not competent to attribute these symptoms to a psychiatric disability. As the record stands, there is no diagnosis of record to which these reported symptoms could be attributed. The criteria for entitlement to service connection for an acquired psychiatric disability, including PTSD, depression, anxiety and sleep and mood disorders, are therefore not met. On the matter of whether the Veteran has a current psychiatric disability, however characterized, there is not an approximate balance of positive and negative evidence of record. As such, reasonable doubt may not be resolved in the Veteran's favor under 38 U.S.C. § 5107(b). Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for right and left fallen arches and heel pain Entitlement to service connection for right and left plantar fasciitis Entitlement to service connection for bilateral hearing loss Entitlement to service connection for bilateral tinnitus Entitlement to service connection for sinusitis Entitlement to service connection for acid reflux Additional action is needed before the Board can proceed in adjudicating these claims. First, the Veteran seeks service connection for the conditions being remanded on a direct basis as related to his 25+ years of service, which includes AD and service in the National Guard. Although, in his initial application for compensation, he claimed that these conditions initially manifested in 1972 (period of AD), he subsequently indicated that they manifested later, while in the National Guard (includes periods of ACDUTRA and INACDUTRA). In multiple statements submitted during this appeal, he contends that he never received guidance on what is needed to support his claims. In light of this contention and based on the Veteran's most recent assertions as to when the claimed conditions initially manifested, the Board reiterates the following provisions noted above. To prevail in a claim for service connection on a direct basis, the evidence must establish that the Veteran has a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. "Active military, naval, or air service" includes any period of AD, ACDUTRA, during which he became disabled from disease or injury incurred in or aggravated in the line of duty, or INACDUTRA during which he became disabled from injury incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21)-(24), 106; 38 C.F.R. § 3.6. When one's service includes AD and time in the National Guard, it is thus not enough to show that a disability is generally related to such service. With this in mind, it is critical for the Veteran to identify with more specificity when each condition began, if not during AD. Second, in July 2021, the Veteran submitted written statements from MM, M.D., finding that the Veteran's gastroesophageal reflux disease (GERD) and sinusitis could have been the direct result of military service. These opinions, which are couched in speculative terms ("could have"), are inadequate. Dr. MM did not explain the rationale for these opinions or indicate whether, by referring to "military service", he meant the Veteran's AD, National Guard service generally, or a period of ACDUTRA or INACDUTRA. To date, VA has not afforded the Veteran VA digestive and respiratory system examinations. Given Dr. MM's opinions, such examinations are needed. Third, during his May 2021 hearing, the Veteran testified that he had received foot and digestive system treatment from a private doctor and undergone an endoscopy approximately two years ago. Records of the treatment and procedure are not in the claims file and, being pertinent to this appeal, should be secured. Fourth, during the same hearing he testified that he had had ringing in his ears (tinnitus) continuously since being on the rifle range in service. In April 2013, when a VA examiner conducted an audiological examination, he related the Veteran's tinnitus to his hearing loss and ruled out a relationship between the hearing and service. However, he based his opinion, in part, on a finding that the Veteran's tinnitus initially manifested five to ten years prior to the examination, many years after service. As the Veteran now claims that it manifested earlier, during AD, an addendum opinion is needed. In addition, as the examiner noted a temporary change in the Veteran's hearing in 1975, during AD, and hearing loss between 1985 and 1989, when the Veteran was serving in the National Guard, the opinion should address whether such loss is related to a period of ACDUTRA or INACDUTRA. These matters are REMANDED for the following action: 1. After securing the necessary authorization, obtain and associate with the file records of the Veteran's private foot and digestive system treatment and the endoscopy he reportedly underwent two years ago. 2. Obtain an addendum opinion on the etiology of the Veteran's hearing loss and tinnitus. The examiner should review: (a) the April 2013 VA audiological examination report linking the Veteran's tinnitus to his hearing loss, ruling out a relationship between the hearing loss and AD, and indicating that such loss initially manifested between 1985 and 1989, when the Veteran was in the National Guard; (b) the Veteran's May 2021 hearing testimony that he has had ringing in his ears continuously since AD; and (c) service personnel records showing various periods of National Guard duty between 1982 and 2005. The examiner should offer an opinion as to whether the Veteran's hearing loss is at least as likely as not (50 percent or greater probability) related to his AD, to include conceded noise exposure, or a particular period of ACDUTRA or INACDUTRA. The examiner should also offer an opinion as to whether the Veteran's tinnitus initially manifested during AD or a particular period of ACDUTRA or INACDUTRA or is at least as likely as not (50 percent or greater probability) related to such service, to include conceded in-service noise exposure. 3. Afford the Veteran a VA examination in support of his digestive system and respiratory system claims. The examiner should review the Veteran's file, including: (a) the Veteran's February 2012 written statement and May 2021 hearing testimony; (b) service treatment records mentioning digestive system and respiratory system complaints and treatment during the Veteran's time in the National Guard; (c) July 2021 Disability Benefits Questionnaires addressing esophagus, nose, throat, larynx and pharynx conditions; and (d) attached opinions indicating that the Veteran's GERD and sinusitis could have been the direct result of military service. The examiner should record in detail the Veteran's history of digestive system and respiratory system symptoms, including when they initially manifested. The examiner should diagnose each digestive system and respiratory system disability shown on examination and which was diagnosed during the course of the claims process. (Continued on the next page) The examiner should opine whether each such disability is at least as likely as not related to the Veteran's service, to include any period of AD, ACDUTRA and INACDUTRA. The examiner should provide clear rationale for the opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.