Citation Nr: 21072163 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-05 292 DATE: December 2, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol abuse is denied. Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for a joint disability and/or a disability manifested by arthralgia is denied. Entitlement to service connection for a tremor disability is denied. Entitlement to service connection for ischemic heart disease is denied. FINDINGS OF FACT 1. The Veteran's psychiatric disability has not manifested at least occupational and social impairment with deficiencies in most areas. 2. A respiratory disability was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that a respiratory disability is etiologically related to active service. 3. A joint disability and/or disability manifested by arthralgia was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that a joint disability and/or disability manifested by arthralgia is etiologically related to active service. 4. A tremor disability was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that a tremor disability is etiologically related to active service. 5. The preponderance of the evidence is against finding that the Veteran has had a clinical diagnosis of a heart disability (including ischemic heart disease) at any time during the appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD with major depressive disorder and alcohol abuse are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a joint disability and/or a disability manifested by arthralgia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for a tremor disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 1966 to April 1969. The appeal originates from March 2008 and July 2011 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded in December 2018 and April 2021 for VA examinations with opinions and Social Security Administration (SSA) records. The record reflects that PTSD, respiratory, heart, joint, and tremor examinations with opinions have been obtained (see discussion below.) SSA responded in May 2021 that there were no available records. There has been substantial compliance with the Remand directives. 1. Entitlement to an initial rating in excess of 50 percent for PTSD with major depressive disorder and alcohol abuse. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's psychiatric disability is rated under Diagnostic Code 9411. Under that code, a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. Based on the evidence, including the February 2011, May 2011, June 2011, and November 2019 examinations, the Veteran is not entitled to an initial rating in excess of 50 percent for his psychiatric disability. The record contains evidence of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. However, he has not displayed symptoms such as 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); and the inability to establish and maintain effective relationships. The presence, or absence, of certain symptoms is not necessarily determinative. However, the presence of symptoms must also cause the occupational and social impairment in the referenced areas. In this regard, the totality of the evidence fails to show that the symptoms of the psychiatric disability produced occupational and social impairment with deficiencies in most areas. The contrary is shown. Despite reporting feelings of depression and anxiety, the Veteran has maintained regular contact and relationships with others. He is socially active in his community, attending church and performing volunteer work there. He visits a community center near daily where he interacts with other seniors and enjoys a wide variety of social activities, including exercise and games. While he was distant from most of his family for most of the appeal, he cared for one of his sons who lived with him and became closer to other family members once he was hospitalized for prostate surgery, even residing with his daughter during recovery. The record shows that he retired following a long career in civil service and pursued a bachelor's degree during the appeal. Although he has not been working, he clarified that he was not actually seeking full-time employment or completion of his degree program. He explained that he did not want to complete academic coursework and felt that he enjoyed too many leisure activities to retain an interest in full-time employment. His judgment and thinking were intact throughout the appeal. Consideration is given to the Veteran's report of suicidal ideation at the November 2019 examination. This was noted to be a momentary incident linked to his catheterization prior to prostate surgery. He otherwise denied having suicidal ideation and described a variety of protective factors, including his family, community, and pet. Similarly, a suicide screening in December 2020 was positive during the past month, but on contemporaneous evaluation, he denied having depression, anxiety, or agitation and declined a mental health referral. He was seen two weeks later and reported no suicidal ideation, instead being noted as calm, oriented, and cooperative. The Veteran's suicidal ideation has been mild, rare, and transient, and is plainly distinguishable from the chronic and pervasive suicidal ideation reported in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes the April 2009 psychological assessment indicating decades of audiovisual hallucinations. However, this reporting is not credible, as the Veteran denied hallucinations one year prior in July 2008. While he reported hallucinations in June 2011, he did not specify their duration or any functional impact they caused. It is also noted that the May 2011 examiner found that the Veteran had occupational and social impairment with deficiencies in most areas. However, the Board affords this finding little weight as it cites examples from marriage and employment that precede the appeal period by several years. The Board acknowledges the Veteran's assertions that he is entitled to an increased rating as well as the lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence simply does not show occupational and social impairment with deficiencies in most areas. The Board also notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. Accordingly, an initial rating in excess of 50 percent for the psychiatric disability is simply not warranted. 2. Entitlement to service connection for a respiratory disability. 3. Entitlement to service connection for a joint disability and/or disability manifested by arthralgia. 4. Entitlement to service connection for a tremor disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if they manifest to a degree of 10 percent disabling or more at any time after service. This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Veteran contends that he has asthma, chronic obstructive pulmonary disease (COPD), joint pain/arthralgia, and tremors due to in-service herbicide exposure. The October and November 2020 VA respiratory, shoulder, knee, and tremor examinations indicate diagnoses of asthma, bilateral shoulder and knee strain (with left shoulder arthritis), and essential tremor. The Board notes that while VA treatment records contain a diagnosis of COPD in December 2019 based on pulse oximetry, pulmonary function testing in October 2019, which was reviewed by the November 2019 examiner, did not yield a diagnosis of COPD. Regardless, element (1) of Shedden is met as to asthma and the remaining diagnoses. Service treatment records are silent for complaints, treatment, or diagnosis of respiratory, joint, or neurological disorders. At separation in April 1969, the Veteran denied a history of asthma, shortness of breath, joint deformity, shoulder pain, knee problems, arthritis, or neurological problems. He was evaluated as normal at that time. Nevertheless, VA has conceded herbicide exposure, which is sufficient to meet Shedden element (2). Regarding Shedden element (3) or a nexus, the October and November 2020 examiners opined that respiratory, joint, and tremor disabilities are less likely as not related to service. As to asthma, the examiner explained that it is not a known herbicide-exposure related disability and that the disease is a separate, unrelated entity. The examiner reviewed medical literature and found that it did not demonstrate a causal relationship between herbicide exposure and asthma. With respect to the joints, the examiner determined that service treatment records reveal no objective clinical evidence to support that the knee and shoulder diagnoses are linked to active service. The examiner found no historical medical data indicating that exposure to herbicide agents causes any type of orthopedic condition. As to a tremor disability, the examiner explained that essential tremor is the most common cause of action tremor in adults, involving the hands and brought out by arm movement and sustained antigravity postures. The examiner noted that the pathogenesis of essential tremor is largely unexplained and that it may be linked to neural degeneration. Regardless, the examiner determined that medical literature did not support herbicide exposure as a cause of the development of tremors. Turning to presumptive service connection, the record does not reflect a diagnosis of shoulder arthritis within one year of separation. The Veteran does not contend otherwise. As to continuity of symptomatology, medical treatment records show that he began having left shoulder problems due to a work injury many years after service in 2004, and therefore such continuity is not established. Finally, consideration is given to the lay assertions that the Veteran's respiratory, joint, and tremor disabilities are related to in-service herbicide exposure. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to probative lay comment regarding etiology. The Veteran and his family members are competent to report observable symptoms, but there is no indication that they are competent to etiologically link any such symptoms to a current diagnosis. They are not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The lay opinions are also outweighed by the October and November 2020 VA opinions. 5. Entitlement to service connection for ischemic heart disease. The Veteran claims service connection for a heart disability due to in-service herbicide exposure, including a myocardial infarction and heart disease. Service treatment records are silent for complaints, treatment, or diagnosis of a heart disorder. Post-service treatment records do not reflect a diagnosis of a myocardial infarction or heart disease. A May 2014 medical treatment record references coronary artery disease but fails to specify how the diagnosis was rendered. Notably, an October 2019 echocardiography report fails to reflect heart disease. The Veteran was afforded a VA heart disease examination in March 2011. The examiner noted that he did not have ischemic heart disease and that arteriograms, electrocardiograms, and echocardiograms performed in 2004 were normal. He underwent another examination in October 2019. Despite the contemporaneous echocardiogram report not reflecting heart disease, the examiner indicated that the Veteran had a myocardial infarction in 2008 with surgical treatment. However, this is not reflected in the record; to the contrary, the Veteran denied having any cardiovascular symptoms in January 2010 and reported no history of cardiovascular surgery. In October 2020, the Veteran underwent another heart examination. The examiner was unable to diagnose a current disability. The examiner found that review of all medical documentation failed to reveal a specific cardiac condition and that diagnostic testing was also negative for such. The examiner explained that the prior examination's finding of a current disability was incorrect as there was no evidence to support a diagnosis. Crucially, the Veteran himself also denied ever having been diagnosed with a myocardial infarction. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The preponderance of the evidence is against finding that the Veteran has had a clinical diagnosis of a heart disability at any time during the appeal. Medical treatment records do not confirm a diagnosis of a heart disorder, including heart disease or a myocardial infarction. The October 2020 examiner reviewed the record and considered the examination results and lay reporting in determining that the Veteran did not have such a diagnosis. Indeed, the Veteran himself denied a history of myocardial infarction, which is consistent with the objective evidence. In the absence of evidence of a current disability, the claim must be denied. M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.