Citation Nr: 21074441 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-07 685 DATE: December 15, 2021 ORDER Service connection for major depressive disorder with panic disorder is granted. Service connection for a left shoulder and clavicle disability is denied. Service connection for a cervical spine disability is denied. REMANDED A disability rating in excess of 20 percent for status-post left ankle reconstruction is remanded. A disability rating in excess of 10 percent for Dequervain's tenosynovitis of the right wrist is remanded. FINDINGS OF FACT 1. The Veteran's major depressive disorder with panic disorder is related to active duty service in the U.S. Army. 2. The Veteran's left shoulder and clavicle disability is not attributable to his active military service, and arthritis of the left shoulder was not manifest within one year of separation from service. 3. The Veteran's cervical spine disability is not attributable to his active military service, and arthritis of the cervical spine was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for major depressive disorder with panic disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a left shoulder and clavicle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army for just over 20 years, from March 1976 to March 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In October 2021, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. As a matter of clarification, in characterizing the claim for a left shoulder and clavicle disability, the Board considered the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence. Here, the VA Regional Office denied a claim for service connection for a left shoulder injury in an October 2007 final rating decision, based on the lack of a current diagnosis. Since then, the Veteran has been diagnosed with a left scapular strain, documented on VA examination in March 2016. As this diagnosis was not present when the claim was previously denied, the Board finds that the present claim must be considered without analysis of whether new and material evidence has been received. Regardless, since the evidence would be new and material, the same result is reached. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Service connection for major depressive disorder with panic disorder is granted. The Veteran has current major depressive disorder with panic disorder, documented on VA examination in March 2016. At the October 2021 hearing and in numerous written statements, the Veteran reported that in early 1989 he was stationed with the U.S. Army Defense Intelligence Agency in Mogadishu, Somalia. His wife joined him on his assignment in the spring of 1989. Shortly after her arrival, the couple attended an outing sponsored by the Embassy Community Liaison Office at a marketplace with other embassy families. After exiting the embassy vehicle and entering the marketplace, the Veteran's wife was suddenly grabbed from behind by a Somali man. He held her hostage at knifepoint for a prolonged period, while bystanders attempted to diffuse the situation. The man holding the Veteran's wife captive did not speak English, which caused further confusion and difficulty. He eventually released the Veteran's wife, and she and the Veteran immediately left the marketplace. He and his wife never returned to the marketplace again during the Veteran's assignment. As the Veteran explained at the hearing, the incident was not documented in his service treatment records as it did not involve a medical problem. The Veteran's service records, including his service separation document (DD Form 214) show that he served in Somalia from October 1988 to December 1989. The records further demonstrate that his wife was present during his assignment as a June 1989 document from the American Embassy in Mogadishu, Somalia indicates that the Veteran and his wife (both identified by name and date of birth) had been in good health during their tour. The Veteran's account is further corroborated by a November 2016 letter from his wife, describing the incident in consistent detail. The Veteran's service treatment records do not document psychiatric complaints, treatment, or diagnoses. However, the Board finds the Veteran's hearing testimony and written statements regarding the incident in Somalia to be both admissible and believable. The record clearly establishes that he and his wife were stationed in Somalia, and the Board finds that his account is consistent with the places, types, and circumstances of his service. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). His reports have been both internally consistent, and consistent with the record as a whole. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board thus accepts that the incident in Somalia occurred as reported. As for the etiology of the disability, the record contains the opinion of a March 2016 VA examiner, and an April 2017 letter from the Veteran's VA treating provider, Dr. K. On VA examination in March 2016, the Veteran was diagnosed with major depressive disorder with panic disorder. The examiner reviewed the claims file, and conducted a clinical examination of the Veteran, documenting his report of the incident in Somalia. He opined, in an April 2016 addendum opinion, that the Veteran's current psychiatric disability is at least as likely as not related to the event that occurred in Somalia. Since the incident, the Veteran has experienced nightmares, anxiety, and panic attacks, indicating that the stressor had a significant impact on him. His symptoms eventually culminated into major depressive disorder, recurrent and severe, with severe panic disorder, by application of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In the April 2017 letter, Dr. K. indicated he has treated the Veteran since 2015 for symptoms of major depression. Dr. K. stated that the Veteran had experiences in Somalia that continue to plague him with nightmares and anxiety. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board finds that the Veteran is entitled to service connection for his current psychiatric disability as directly related to service. The Board accepts the occurrence of incident in Somalia as contended, and the March 2016 VA examiner's findings are fully adequate for adjudication. The examiner based his findings on a review of the claims file and an examination of the Veteran, and his findings were supported by a clear rationale and consistent with the April 2017 findings of Dr. K. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no evidence to the contrary of the findings of the March 2016 VA examiner or Dr. K. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). As the evidence is at least in equipoise in showing that the Veteran has major depressive disorder with panic disorder attributable to service. Resolving any doubt in his favor, the Board finds that service connection is warranted. 2. Service connection for a left shoulder and clavicle disability is denied. The Veteran has a current left scapular strain, documented on VA examination in March 2016. On his July 1975 service entrance examination, left shoulder and clavicle abnormalities were not noted and the Veteran raised no pertinent complaints. He subsequently injured his shoulder when he fell off his bicycle in September 1992. He sustained a shoulder sprain and upper back contusion in the incident. X-rays were normal and revealed no fracture of the cervical spine or shoulders. He was restricted from lifting, push-ups, and pull-ups for approximately four weeks and was prescribed physical therapy. He reported left shoulder pain in March and April 1993. In November 1994, he again sought treatment for pain in the upper left arm. The examiner noted he had spent the preceding weekend lifting and packing boxes at home. There was no injury or pain in the shoulder joint itself and the Veteran was diagnosed with tendonitis of the arm. In December 1995, he sought treatment for left shoulder pain. He had a full range of motion and the diagnosis was a muscle strain. On his December 1995 service separation examination, no abnormalities of the left shoulder were noted and the Veteran did not raise any pertinent complaints. As for the etiology of the disability, on VA examination in August 2007, the examiner reviewed the claims file and examined the Veteran. He noted the 1992 bike accident, but noted that by March 1993, he had completed physical therapy with a full resolution of the injury. On physical examination at retirement, there were no left shoulder symptoms present or abnormalities found. Rather, the examiner noted the Veteran's report of a slip and fall accident that occurred in 2001-2002 in the bathroom at his place of employment. The examiner noted that the Veteran sought workers compensation and completed physical therapy following the incident. In March 2016, a VA examination was conducted by the examiner did not provide an opinion on the etiology of the left shoulder and clavicle disability. On VA examination in July 2016, the examiner reviewed the claims file and examined the Veteran. She noted and summarized the 1992 bicycle accident and the Veteran's reports of ongoing pain since the event. She also noted the post-service fall at work, resulting in work restrictions and physical therapy. She concluded that the current disability was less likely than not incurred in or caused by service. The injury in service was acute and transitory, and a left shoulder and clavicle abnormality was not present on service separation. A chronic or disabling left shoulder condition was not present during service or shortly after separation. Rather, current radiological evidence indicated the presence of age-appropriate natural degeneration. At the October 2021 hearing, the Veteran testified that his left shoulder and clavicle was injured during his 1992 bicycle accident, and his symptoms have persisted since that time. He testified that he avoided seeking medical treatment for the problem in service due to a fear of negative repercussions on his military career. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current left shoulder and clavicle disability is related to active military service, or that a chronic disability was incurred in service. As described, while service treatment records show a 1992 left shoulder injury, x-rays were negative and no abnormalities of the left shoulder or clavicle were found by the examining physician on his service separation examination in December 1995. As explained by the July 2016 VA examiner, the 1992 injury was acute and transitory. A review of the post-service medical records does not reveal a pertinent disability, or any documentation of arthritis of the left shoulder, within one year of his March 1996 discharge. The fact that the Veteran sought treatment for other conditions after service, but not a left shoulder or clavicle disability, weighs against the credibility of any assertion that the current disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013). The claims file contains treatment records dating back to 1996 documenting a number of other complaints, without mention of a left shoulder or clavicle disability. Because he described other complaints of musculoskeletal pain and provided overall assessments of his health and functioning to his general practitioners, without mention of this condition, it is reasonable to conclude that none was present. Id.; see also Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical opinion evidence is also persuasive. The August 2007 and July 2016 VA examiners noted the 1992 bicycle accident and addressed the contentions of direct service connection, but opined that the Veteran's current disability is not related military service, including the symptoms documented therein. Another etiology, the aging process, was identified by the July 2016 VA examiner. The examiners based the conclusions on an examination of pertinent records in the claims file, including the post-service treatment records and diagnostic reports. They reviewed the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. The only evidence to the contrary of the VA examiner's opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as a left scapular strain, particularly in light of the intervening post-service slip and fall accident. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 3. Service connection for a cervical spine disability is denied. As the Veteran has current neck pain with functional impairment, the Board finds the presence of a current cervical spine disability. See Wait v. Wilkie, 33 Vet. App. 8 (2020); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis.) His contentions of the in-service incurrence of a cervical spine injury as due to the 1992 bicycle accident and the pertinent service treatment records, are summarized above. As described, the Veteran clearly sustained injuries in 1992. However, on his December 1995 service separation examination, no abnormalities of the cervical spine were found and the Veteran raised no pertinent complaints. A review of the post-service medical records does not reveal a pertinent disability, or any documentation of arthritis of the cervical spine, within one year of his March 1996 discharge. On VA examination in August 2007, the examiner stated that the service treatment records indicated that, "any upper back and left shoulder problems that the veteran had due to the bicycle injury had resolved by 1993." In October 2013, x-rays were taken of the cervical spine. The interpreting physician found no indication of a traumatic cervical spine injury. At the October 2021 hearing, the Veteran testified that his neck was injured during his 1992 bicycle accident, and he has experienced neck pain since that time. He testified that he avoided seeking medical treatment for the problem in service due to a fear of negative repercussions on his military career. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current cervical spine disability is related to active military service, or that a chronic disability was incurred in service. The service treatment records are silent for pertinent documentation, other than the acute and transitory injury from 1992, and no abnormalities were found on service separation. The fact that the Veteran sought treatment for other conditions after service, but not a cervical spine disability, weighs against the credibility of any assertion that the current disability persisted since discharge. See AZ, 731 F.3d at 1303. The claims file contains treatment records dating back to 1996 documenting a number of other complaints, without mention of a cervical spine disability. Because he described other complaints of musculoskeletal pain and provided overall assessments of his health and functioning to his general practitioners, without mention of this condition, it is reasonable to conclude that none was present. Id.; see also Maxon, 230 F.3d at 1333. A VA medical opinion has not been obtained to address the etiology of this disability. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board finds that there is no indication, other than the Veteran's report, of any association between his current cervical spine disability and service. Indeed, the statement of the August 2007 VA examiner and the October 2013 x-ray report only provide evidence against the claim. The Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a complex cervical spine disability, particularly in light of the intervening post-service slip and fall accident. Kahana, 24 Vet. App. at 437. His statements alone are thus insufficient to warrant a medical examination as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. See, e.g., Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, VA is under no duty to obtain a medical opinion. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. REASONS FOR REMAND 1. A disability rating in excess of 20 percent for status-post left ankle reconstruction is remanded. 2. A disability rating in excess of 10 percent for Dequervain's tenosynovitis of the right wrist is remanded. The Veteran last underwent VA examinations for his left ankle and right wrist disabilities nearly six years ago, in March 2016. At the October 2021 hearing, he reported symptomatology related to both of these disabilities that was not documented in previous records, and testified that his disabilities have worsened since he was last examined by VA. Specifically, he testified that he has to constantly wear and ankle brace due to his left ankle disability, he cannot participate in any physical activity, and he has a lack of sensation in the ankle. Hearing Transcript, pp. 3-5. As for the right wrist, he testified that he experiences severe flare-ups and constant swelling in the right wrist. Hearing Transcript, pp. 5-7. Given the indications of a possible worsening of the disabilities, the Board finds that updated examinations assessing the current severity of the disabilities should be provided. See 38 C.F.R. § 3.327(a) (2020); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to ascertain the current severity of his left ankle disability, in accordance with the applicable worksheet for rating the disability. The examiner is advised that the Veteran reports potential neurological symptoms of the left ankle. To the extent possible, the examiner must distinguish any symptoms associated with the service-connected left ankle disability, from those related to any non-service disorder. If the symptomatology cannot be distinguished or is interrelated, the examiner must say so. 2. Afford the Veteran a VA examination to ascertain the current severity of his right wrist disability, in accordance with the applicable worksheet for rating the disability. The examiner is advised that the Veteran reports constant swelling of the right wrist. To the extent possible, the examiner must distinguish any symptoms associated with the service-connected right wrist disability, from those related to any non-service disorder. If the symptomatology cannot be distinguished or is interrelated, the examiner must say so. 3. On readjudication of each claim, the VA Regional Office must consider whether either the service-connected left ankle disability or right wrist disability are manifested by any symptomatology that may be separately rated. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.