Citation Nr: 21070272 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-21 048A DATE: November 23, 2021 ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to service connection for a bilateral shoulder disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702 is denied. REMANDED The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for leishmaniasis, to include as due to a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of PTSD or any mental health condition. 2. The preponderance of the evidence is against finding that the Veteran's bilateral shoulder disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran's low back disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran's bilateral knee disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 5. An active psychosis is not shown to have developed within two years of separation from active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for eligibility for Chapter 17 medical benefits under 38 U.S.C. § 1702 for a psychosis are not met. 38 U.S.C. §§ 1702, 5107; 38 C.F.R. §§ 3.2, 3.384, 17.109 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1979 and from October 1990 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in August 2019. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). SERVICE CONNECTION Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 (d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).). 1. Entitlement to service connection for an acquired psychiatric disorder is denied. The Veteran seeks entitlement to service connection for a psychiatric disability, which he claimed as PTSD, and which he contends is related to stressful in-service events, including being present during SCUD missiles attacks. However, the record does not show that the Veteran has been diagnosed with PTSD (or any mental health condition) by a competent medical source. Service connection for PTSD requires (1) medical evidence diagnosing the condition 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. See 38 C.F.R. § 3.304 (f). For appeals certified to the Board after August 4, 2014, such as the Veteran's appeal for entitlement to service connection for PTSD, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, fifth Edition (DSM-5). 38 C.F.R. § 4.125 (a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-5). As stated above, the evidence of record does not demonstrate that the Veteran has a current diagnosis of PTSD. The Veteran was provided a mental health examination in February 2011. The VA examiner reviewed the record, interviewed the Veteran, conducted an in-person examination and determined that the Veteran does not meet the criteria for a diagnosis of PTSD. No mental health diagnosis was provided. The Board acknowledges the Veteran's assertions that he has PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), the diagnosis of a specific psychiatric condition such as PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Establishing PTSD as a disability for VA purposes requires diagnostic testing and a diagnosis conforming to the diagnostic criteria set forth in the DSM-5. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to be deemed competent to diagnose a disability such as PTSD, as such is a complex matter. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis of PTSD conforming to the DSM-5 (or any mental health condition). The Board instead affords probative value to the medical evidence of record, which shows that the VA medical examiner considered the Veteran's reported psychiatric symptoms and declined to provide a formal diagnosis of PTSD. Accordingly, the competent medical evidence of record does not show that the Veteran had a diagnosis of PTSD during or in proximity to the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board has considered his claim broadly and not limited it to just PTSD, but, the evidence of record does not reference treatment for or diagnosis of any mental health condition. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a psychiatric condition, including PTSD. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a bilateral shoulder disability is denied. The Veteran contends that he has a bilateral shoulder disability that is directly related to his active service. Initially, the Board observes that the record establishes a current diagnosis of right shoulder mild degenerative joint disease and reduced range of motion of the left shoulder, as shown in a June 2011 VA examination. Accordingly, a current disability is established. However, the Veteran's active service treatment records are silent for any complaints of or treatment for a chronic bilateral shoulder disorder. During his National Guard service, in February 1986, the Veteran was seen for a complaint for right shoulder fleeting pain. However, there is no indication it was the result of an injury during his inactive service, nor was any shoulder condition diagnosed at that time. There were no further complaints, including during his subsequent 1990-91 active duty period, so there is no persuasive evidence of in-service incurrence of a chronic bilateral shoulder disorder. In 2011, the Veteran noted that he has had left shoulder pain since the 1990s and denied pain in the right shoulder. The "1990s" is too vague to conclude he meant to report onset during the 1990-91 active duty period. Although he was seen in 1992 for orthopedic complaints concerning the arm/elbow, he did not specifically raise any complaints for his shoulders. Furthermore, he had a general VA medical examination in 1995 in connection with other compensation claims, and he did not report shoulder pain at that time (although he complained of other joint pains). For these reasons, there is no credible evidence of continuity of symptoms. Additionally, the only medical evidence in the claims file discussing the etiology of the Veteran's bilateral shoulder disorder is the January 2011 VA opinion, which concluded that it was less likely than not that the Veteran's bilateral shoulder disorder was incurred in or caused by his active duty service. The January 2011 VA examiner noted there was no evidence of any treatments related to his shoulders since leaving active service and no evidence of any injuries during his active service. The VA examiner further noted that considering his advancing age and obesity and the x-ray reports being degenerative in nature the Veteran's shoulder disability is more likely related to his advancing age. As the evidence of record does not establish in-service incurrence of a bilateral shoulder disability or a nexus between the Veteran's current bilateral shoulder disorder and his active duty service, service connection on a direct basis is not warranted. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral shoulder disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a low back disability is denied. The Veteran seeks entitlement to service connection for a low back disability, which he contends is related directly to his active military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has a current diagnosis of mild low back degenerative disc disease, he is competent and credible in his reports of engaging in strenuous activities during his active service, and the service treatment records show that he reported back pain in May 1977, the preponderance of the evidence weighs against finding that the Veteran's degenerative disk disease began during service or is otherwise related to an in-service injury, event, or disease. The service treatment records show that the Veteran reported a three day history of pain in the low back in May 1977. He was diagnosed at the time with muscle spasms. The Veteran did not report back pain or other spinal symptoms during the remainder of his active service, nor was he diagnosed with a back, neck, or spinal condition during his active service. He had a normal clinical evaluation of the spine on examination for separation from active service in May 1991. Later in 1991, after his period of active duty, private treatment records show the Veteran complained of back pain, but x-rays were normal, so a chronic back condition was not shown at that time. During a Persian Gulf Registry exam in 1995, the Veteran reported "back problem" and stated that he had pain from driving a truck. The medical treatment records do not show the Veteran was diagnosed with degenerative disk disease or any other spinal disability until many years after his separation from active service. Therefore, the record does not show that the Veteran's current degenerative disk disease had its onset during his active service. Regarding whether the current degenerative disk disease may be related to an in-service event, injury, or disease, to include the in-service complaint of back pain or the reported in-service strenuous activities, in August 2021 a VA examiner opined that the Veteran's diagnosed spine disability is less likely than not related to an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that the Veteran's in-service back disability was acute only. The VA examiner further explained that there is no evidence of chronicity of care and symptoms are subjective only. The VA examiner noted that the Veteran's degenerative disk disease are in part due to the natural aging process. A prior opinion in June 2021 was also negative. The August 2021 VA examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The August 2021 VA examiner explained that the Veteran's current low back disability is more likely related to the aging process. The August 2021 VA examiner explained that the in-service low back complaint was acute and resolved prior to separation from active service. The examiner also explained that the lack of treatment in the years following separation from active service suggests that there is no nexus to service. The Board accepts the examiner's opinion as probative evidence that the current spinal disability is not related to the Veteran's active service, to include the May 1977 complaint of back pain and the reported in-service strenuous activities. The Board acknowledges the Veteran's belief that his current degenerative disk disease is related to an in-service injury, event, or disease. However, the Veteran in this case is not considered competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the pathology and progression of specific spinal disabilities. Therefore, it is outside the competence of the Veteran, as the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Consequently, his statements in that regard are not due probative value, and they do not weigh against the VA examiner's probative opinions. In summary, the preponderance of the evidence is against finding that the Veteran's degenerative disk disease began during his active service, or is otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a low back disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49. 4. Entitlement to service connection for a bilateral knee disability is denied. The Veteran seeks entitlement to service connection for a bilateral knee disability, which he contends is related directly related to his active military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Initially, the Board observes that the record establishes a current diagnosis of left knee strain and right degenerative arthritis, as shown in a June 2021 VA examination. Accordingly, a current disability is established. However, the Veteran's service treatment records are silent for any complaints of or treatment for a bilateral knee disorder, and the 1992 private treatment records showed complaints of other orthopedic conditions, but not the knees. During a Persian Gulf Registry exam in 1995, the Veteran reported joint issues including the knees. In connection with a claim for compensation, the Veteran did complain of knee pain during the 1995 VA examination, and x-rays showed minimal degenerative changes in the right knee only. Therefore, arthritis was not shown within the presumptive period. The Board concludes that although the Veteran has a current diagnosis of a bilateral knee condition and he is competent and credible in his reports of engaging in strenuous activities during his active service, the preponderance of the evidence weighs against finding that the Veteran's bilateral knee condition began during service or is otherwise related to an in-service injury, event, or disease. He was not diagnosed with a chronic knee disorder during service or within presumptive period. The only medical evidence in the claims file discussing the etiology of the Veteran's bilateral knee disorder is the August 2021 VA opinion, which concluded that it was less likely than not that the Veteran's bilateral knee disorder was incurred in or caused by his active duty service. The August 2021 VA examiner noted there was no evidence of chronicity of care related to his bilateral knees after his separation from active service. The VA examiner further noted that the Veteran did have to lift heavy objects during his active service based on his military operation specialty (MOS). However, any bilateral knee strain was only acute. As the evidence of record does not establish in-service incurrence of a bilateral knee disability or a nexus between the Veteran's current bilateral knee disability and his active duty service, service connection on a direct basis is not warranted. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral knee disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to service connection for the purpose of establishing eligibility to treatment under 38 U.S.C. § 1702 is denied. The Veteran served on active duty in the United States Army from November 1975 to November 1979 and from October 1990 to June 1991. He is thus a veteran of the Persian Gulf War. See 38 C.F.R. § 3.2. Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a Veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility for Chapter 17 benefits. 38 U.S.C. § 1702. VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384. In this regard, under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. In addition, the Board notes that 38 U.S.C. § 1702 has been expanded to include diagnoses of active mental illness; however, this provision explicitly applies only to veterans of the Persian Gulf War. See 38 U.S.C. § 1702 (b). The evidence of record does not demonstrate the presence of psychosis. As noted above, the Veteran was provided a VA mental health examination in February 2011. The VA examiner noted that the Veteran did not have a current mental health condition. As such, there is no evidence, lay or medical, that the Veteran had a mental illness within two years after his separation from active wartime service. As the weight of the evidence is against a finding that the Veteran developed an active mental illness during the relevant two-year presumptive period, presumptive eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for mental illness is inapplicable, and the claim must be denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea. The Veteran was provided a VA examination related to his sleep apnea in June 2021. The VA examiner noted that the Veteran was diagnosed with sleep apnea and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner explained there were no complaints typical of patients with sleep apnea during his active service. The VA examiner further explained that the Veteran's service treatment records do not give any indication that his sleep apnea arose during service or was incurred during active service. The Board notes that in the May 2018 notice of disagreement (NOD), the Veteran's spouse reported that the Veteran displayed chronic fatigue and disturbed sleep after returning from Operations Desert Shield and Desert Strom. The VA examiner did not address the Veteran's spouse's statement or why the statement do not constitute objective evidence of an in-service onset of sleep apnea. The Board therefore finds that the June 2021 VA opinion is not supported by adequate rationale and that the issue must be remanded for an addendum opinion. Additionally, the Board notes that in a March 2013 statement, the Veteran reported that he sought private treatment from Dr. S. C. and Dr. G. W. related to his sleep apnea. However, there is no evidence that the RO attempted to obtain the Veteran's private treatment records related to his sleep apnea. 2. Entitlement to service connection for leishmaniasis is remanded. The Veteran seeks entitlement to service connection for leishmaniasis, which he claims is due to exposure while serving in Southwest Asia. The medical treatment records show that the Veteran has been treated for leishmaniasis. Additionally, the Veteran submitted an article reflecting that leishmaniasis can be transmitted in deserts in West Asia and the Middle East. The Board therefore finds there is an adequate indication that the Veteran's leishmaniasis may be due to his active service such that the threshold for providing an examination has been met. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board therefore finds that the issue must be remanded so that the Veteran may be provided an examination as to his leishmaniasis. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete and submit to VA a signed authorization for disclosure of medical records to VA for each private medical health care provider from whom he has received treatment for the disabilities at issue on appeal. The Board is specifically interested in records from Dr. S. C. and Dr. G. W. related to his sleep apnea. After receiving any completed authorization form(s), undertake all appropriate efforts to attempt to obtain the identified records. All development efforts with respect to this directive should be associated with the claims file. The Veteran is encouraged to submit directly to VA any outstanding, relevant medical records in his possession. 2. After the above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's sleep apnea at least as likely as not (50 percent probability or greater) had its onset during his active service or is related to an in-service event, injury, or disease. Provide a rationale to support the opinion. The opinion must discuss the statements from the Veteran's spouse in the May 2018 NOD. The examiner should discuss whether such symptoms indicate that the Veteran's current sleep apnea had its onset during his active service. If such symptoms alone are not indicative of an in-service onset of sleep apnea, then the examiner should clearly state that opinion and provide supporting rationale for the opinion. 3. Obtain a VA examination and opinion from an appropriate clinician regarding whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a qualifying chronic disability, such as an undiagnosed illness or medically unexplained chronic multisymptom illness, as defined under 38 C.F.R. § 3.317. Consideration must be given to the Veteran's reported symptoms of leishmaniasis. If the Veteran's leishmaniasis is not a symptom of a qualifying chronic disability under 38 C.F.R. § 3.317, then also obtain an opinion as to whether the Veteran's leishmaniasis at least as likely as not had its onset during the Veteran's service or is otherwise etiologically related to the Veteran's service. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.