Citation Nr: 21075599 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-34 183 DATE: December 21, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for right rotator cuff tendonitis is denied. REMANDED Entitlement to service connection for a left ankle disability (claimed as villonodular synovitis of the ankles) is remanded. Entitlement to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no credible evidence supporting the alleged in-service stressor occurred. 2. The most probative evidence of record does not show right rotator cuff tendonitis to be etiologically related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for right rotator cuff tendonitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 2004 to March 2008 and he received an Honorable Discharge. The Veteran also served in the Naval Reserve from 2008 to 2013 and received a General Discharge (Under Honorable Conditions). As an initial matter, the Board notes that, in a February 2020 statement, subsequent to the certification of this appeal to the Board, the Veteran's attorney informed the Board that she was withdrawing from representing the Veteran in all matters currently pending before VA. The decision to withdraw from representation after certification of an appeal is not a unilateral choice to be exercised at the discretion of the representative. Pursuant to 38 C.F.R. § 20.6, after an appeal has been certified to the Board, the representative may not withdraw services as representative in the appeal unless good cause is shown on motion. In this case, the Veteran's attorney has not submitted such a motion and as a result still represents the Veteran for this appeal. 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 Board acknowledges that the Veteran requested hearings in the course of this appeal. However, in a July 2017 statement, the Veteran's representative withdrew the Veteran's request for a Decision Review Officer (DRO) hearing. In August 2019, the Veteran's representative withdrew the Veteran's request for a Board hearing. As such, the Board will proceed to adjudicate the claims without a hearing. 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. Additionally, the Board acknowledges that that the Veteran submitted additional evidence after the June 2017 statement of the cases were issued. Under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, the additional evidence that the Veteran submitted after June 2017 is subject to initial review by the Board because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C.A. § 7105 (e)(1) (West 2014). As such, the Board may proceed to adjudicate the claims as done below. The Board also notes that the Veteran's representative indicated in an October 2019 statement that the Veteran should be provided an increased rating for his service-connected major depressive disorder, if service connection for PTSD cannot be granted. In this regard, the Board advises the Veteran that he is always free to file a claim for an increased rating for any service-connected disability. However, if he chooses to file a claim for an increased rating, he should proceed to do so on the appropriate form. 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). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f)(1) (2019); see also, 38 U.S.C. § 1154 (b) (West 2014). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). In addition, there are special provisions relating to PTSD claims based on fear of hostile military or terrorist activities. Specifically, 38 C.F.R. § 3.304 (f)(3) provides that "[i]f a stressor claimed by a veteran is related to the 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor." The Board notes that the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury or a covered disease (acute myocardial infarction, cardiac arrest, or cerebrovascular accident) incurred or aggravated in line of duty. 38 U.S.C. § 101 (24) (West 2002); 38 C.F.R. § 3.6 (a), (d) (2020). The definitional statute, 38 U.S.C. § 101 (24), makes a clear distinction between those who have served on active duty and those who have served on ACDUTRA or INACDUTRA. The United States Court of Appeals for Veterans Claims (Court) has held this statute, in effect, means that if a claim relates to period of ACDUTRA, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim. Paulson v. Brown, 7 Vet. App. 466, 469-470 (1995). The term ACDUTRA includes full-time duty in the Armed Forces performed by a Reservist for training purposes or by a member of the National Guard of any State. 38 U.S.C. § 101 (22) (West 2014); 38 C.F.R. § 3.6 (c) (2020). The term INACDUTRA includes duty other than full-time duty prescribed for Reserves or the National Guard of any State. 38 U.S.C. § 101 (23) (West 2014); 38 C.F.R. § 3.6 (d) (2020). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101, 106, 1110, 1131 (West 2014). 1. Entitlement to service connection for PTSD is denied. The Veteran is seeking service connection for PTSD. As an initial matter, the Board notes that the Veteran is already separately service connected for a major depressive disorder. In support of his PTSD claim, the Veteran asserted in an April 2014 statement that he witnessed a sailor lose a limb from a jet propeller incident that occurred sometime between April and June of 2005. While a November 2016 Information Report revealed that the Veteran received hostile fire/imminent danger pay for his March 2005 to July 2005 service, the Board notes that the Veteran's reported stressor is not related to confirmed combat service or to a fear of hostile military or terrorist activities. He has specifically asserted that his PTSD is related to the above-described jet propeller incident. As such, the law requires verification of a claimed stressor in order to grant service connection for PTSD. In a July 2014 response from the Defense Personnel Records Information Retrieval System (DPRIS), it was noted that a 2005 command history for the USS Carl Vinson was not maintained. A general ship's history documented that the USS Carl Vinson deployed in support of Operation Iraqi Freedom and Operation Enduring Freedom during the periods of February 1 to July 31, 2005. Deck logs from April 1, 2005 through June 30, 2005 document that the USS Carl Vinson conducted flight operations in the Persian Gulf during the entire researched period. However, neither the history nor the deck logs document the incident described in the Veteran's claim. In his June 2005, post-deployment health assessment, the Veteran reported that he did not see any personnel wounded during the deployment. In a July 2014 memorandum, the Regional Office (RO) determined that the Veteran did not provide enough information to corroborate the stressful events reported as incurred by the Veteran during his active service. In a June 2016 response from the DPRIS, it was noted that a review of the May 1 to June 30, 2005, deck logs submitted by the USS Carl Vinson reflects that aircraft operations were conducted in the Persian Gulf. The deck logs and the 2005 casualty data available do not document the propeller incident described by the Veteran. The Board notes that the claims file contains some evidence linking a diagnosis of PTSD to service. Specifically, in a July 2015 private medical record from Prairie Family Medicine, a family psychiatric nurse practitioner found that the Veteran had severe symptoms of clinical PTSD due to life-threatening experiences while serving on active duty in the military. In a May 2017 Disability Benefits Questionnaire (DBQ), the Veteran reported that he observed another service member lose a limb when he was struck by a propeller during his 2005 deployment. The examiner opined that the Veteran's PTSD is more likely than not secondary to his reported PTSD stressor. Although he was deployed to the Persian Gulf, he did not endorse any stressors that meet criteria associated with hostile military or terrorist activity. With regard to the Veteran's assertion that he witnessed a servicemember lose a limb due to a propeller incident, efforts have been made to verify this assertion, as discussed above, to no avail. The Board acknowledges that the July 2015 nurse practitioner and the May 2017 VA examiner linked PTSD to the Veteran's service. However, without credible supporting evidence that the claimed in-service stressor actually occurred, service connection cannot be granted for PTSD on the basis of this alleged stressor. Moreover, to the extent that the July 2015 nurse practitioner linked PTSD to life-threatening experiences while serving on active duty in the military, the Board notes that the Veteran has not alleged to VA that he had life-threatening experiences while serving in the military or that his PTSD is related to life-threatening experiences. Moreover, 38 C.F.R. § 3.304 (f)(3) provides that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must provide the link between PTSD and a Veteran's fear of hostile military or terrorist activity, not a private, non-contracted nurse practitioner. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. Entitlement to service connection for right rotator cuff tendonitis is denied. The Veteran contends that he is entitled to service connection for right rotator cuff tendonitis. A review of his active duty service treatment records reveals no complaints, treatment, or diagnoses of a right shoulder disability. In a February 2008 Report of Medical History, the Veteran denied having a painful shoulder. In a March 2010 treatment record, the Veteran reported that he injured his right shoulder in March 2009 after doing push-ups and playing football. In an August 2012 Report of Medical History related to the Veteran's service in the Naval Reserve, he reported that shoulder pain surfaced during his deployment in 2005 while working on the flight deck on board the USS Carl Vinson. In November 2015, the Veteran underwent a VA examination, at which he was noted as having rotator cuff tendonitis. The examiner concluded that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's records show that his right shoulder injury occurred in 2009. The Veteran was not in an active duty or ACDUTRA status at that time. The examiner was confident, based on his review of the records, that the Veteran injured his shoulder playing football. He was seen for this condition prior to his deployment in 2010 and the history reported at that time shows that the shoulder had been hurting for a year since his football injury. The Veteran's post-deployment assessment in 2005 shows he denied joint pains, and his 2008 separation assessment shows that he denied any shoulder injuries, past or present. 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. Currently, there is no medical evidence of record documenting that a chronic disability of the right shoulder actually manifested in service. While the Veteran was noted as complaining of having shoulder issues for many years in a 2012 Naval Reserve treatment record, there is no indication that he injured his shoulder during service or developed a shoulder disability during a period of active service. The Veteran himself did not report that he developed a shoulder disability during a period of Reserve ACDUTRA service but has instead linked his disability to his active service. Additionally, the Veteran actually reported in a March 2010 medical record that he injured his shoulder in March 2009 while playing football. Moreover, the only medical opinion of record on the matter specifically does not link a right shoulder disability to the Veteran's service. The Board finds this November 2015 VA opinion to be probative on the matter, as the examiner reviewed the claims file, examined the Veteran, and offered a detailed rationale for his opinion. There are no probative medical opinions of record to the contrary. As such, service connection cannot be granted on a direct basis. The Board has considered the Veteran's contention that his shoulder disability is related to service. However, he is not competent to link a current diagnosis of a shoulder disability to his service, as he has no medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right rotator cuff tendonitis, and the benefit-of-the-doubt rule is not for application. The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability (claimed as villonodular synovitis of the ankles) is remanded. The Veteran is seeking service connection for a left ankle disability. A review of his active duty service treatment records reveals no complaints, treatment, or diagnoses related to his left ankle. In a March 2010 medical record from the 92nd Medical Group during his time in the Reserve, the Veteran presented with bilateral ankle pain and reported that, since boot camp, his ankles swell with increased activity. In a January 2012 record from the Veteran's Naval Reserve service, it was noted that the Veteran had been unable to perform physical readiness training (PRT) since 2009 due to bilateral ankle pain. In an August 2012 Report of Medical History related to the Veteran's service in the Naval Reserve, the Veteran reported that he wore bilateral ankle braces. A September 2012 private medical record from Inland Northwest Foot & Ankle noted that the Veteran presented with bilateral ankle pain. In consideration of the Veteran's assertions that he has experienced ankle symptoms since his time in boot camp and the evidence of record documenting ankle complaints within 2 years of discharge from active duty service, the Board finds that a VA medical opinion should be obtained addressing the etiology of the Veteran's claimed left ankle disability. The Board acknowledges that the Veteran was provided VA ankle examinations in July 2014 and August 2016. However, these examinations did not include etiological opinions regarding the Veteran's claimed left ankle disability. As such, the Board finds that this issue must be remanded in order to obtain such an etiological opinion. Moreover, the Board finds that this etiological opinion should also address whether the Veteran's left ankle disability is related to his service-connected right ankle disability, in light of assertions made by the representative in an October 2019 statement. 2. Entitlement to TDIU is remanded. As the issue of entitlement to TDIU can be impacted by resolution of the Veteran's left ankle disability claim being remanded, the Board finds that the issue of entitlement to TDIU must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, the Board notes that a May 2017 PTSD DBQ indicated that the Veteran had been working as a patient safety attendant at a hospital for two and a half years. However, the Veteran submitted an August 2013 letter from a former employer indicating that he was being laid off, as he was physically unable to perform his job functions. In an August 2016 VA ankle examination, the examiner noted that the Veteran reported increased pain with most physical activity and, therefore, a sedentary job would be advised. The Veteran's current state of employment is unknown. However, as there is some indication in the record that the Veteran's service-connected disabilities may interfere with his ability to maintain or obtain substantially gainful employment, the Board will refer this issue to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16 (b) for consideration of whether this benefit is warranted on an extra-schedular basis. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed left ankle disability. All appropriate tests and studies should be performed, and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, examining the Veteran, and noting his reported history of symptoms, the examiner should diagnose the Veteran with all current disabilities of the left ankle. Then, the examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed left ankle disability was incurred in, or caused or aggravated by, the Veteran's military service OR caused or aggravated by his service-connected right ankle disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Refer the Veteran's claim for entitlement to TDIU to the Director of Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16 (b), for consideration of whether entitlement to TDIU is warranted on an extra-schedular basis. This referral is mandatory, although the decision of whether to actually award an extra-schedular rating remains with the Director, Compensation and Pension Service. RAY BARTO SLABBEKORN, JR. 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.