Citation Nr: A21019200 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 211012-190479 DATE: December 2, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for sinusitis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major neurocognitive disorder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had PTSD at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had tinnitus at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that the Veteran has a sinus disability that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sinusitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1963 to December 1963, from April 1964 to April 1967, from March 1968 to September 1976, and from May 1980 to October 1984. The Veteran also had additional service in the Air Force and Army National Guards. The Veteran served in the Republic of Vietnam from February 1970 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This decision conducted a Higher-Level Review of a previous July 2021 decision by the RO. 38 C.F.R. §§ 3.2500(a), 3.2601. In an October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 AOJ decision. 38 C.F.R. § 20.301. As the Veteran alleges that he has multiple psychiatric diagnoses, the Board has recharacterized the claims on appeal accordingly. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Generally, to establish service connection, a claimant must show: (1) 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 in-service disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). "Active service" includes active duty, a period of active duty for training (ADT) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty for training (IDT) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24)(B); 38 C.F.R. § 3.6(a). See also Brooks v. Brown, 5 Vet. App. 484 (1994). ADT includes full-time duty performed for training purposes by members of the Reserves or National Guard. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). IDT is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of ADT, while weekend drills are IDT. 1. Entitlement to service connection for PTSD The Veteran contends that he has PTSD as a result of his service. The Board notes that the Veteran has been awarded the Vietnam Cross of Gallantry based on his service in the Republic of Vietnam. As such, the RO made a favorable finding in the July 2021 rating decision that an in-service stressor occured. The evidence of record includes VA treatment records from May 2004, June 2009, and December 2015 indicating negative results for PTSD screening tests. In June 2021, the Veteran was provided with a PTSD examination where the examiner found that the Veteran did not have a diagnosis of PTSD that conforms to DSM-5 criteria. The examiner noted that the Veteran did not have a diagnosis for PTSD "because there are no findings, signs and or symptoms to support a diagnosis." The examiner added that the Veteran "does not report distress related to his Vietnam experiences," and he "denied having traumatic experiences from combat or Vietnam." The Board finds that as the Veteran has not been diagnosed with PTSD, and the record does not include any competent medical evidence of a current disability, service connection for PTSD is not warranted. The June 2021 examiner explained that the Veteran did not meet the DSM-V criteria for PTSD and that there were no findings, signs, or symptoms to support a diagnosis. Additionally, as noted above, VA treatment records showed that PTSD screenings were negative in May 2004, June 2009, and December 2015. In the absence of a current diagnosis, service connection for PTSD is not warranted. While the Veteran believes he has a current diagnosis of PTSD, he is not competent to provide a diagnosis in this case. The Veteran is competent to report what he experiences, such as memory problems and depression. See Jandreau, 492 F.3d at 1372. He is not, however, capable of making medical conclusions; thus, to the extent that he contends that he has PTSD, his statements are not competent evidence. Id. Psychiatric disabilities are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. Accordingly, the Board finds that the claim of entitlement to service connection for PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for tinnitus The July 2021 rating decision included favorable findings that tinnitus is a chronic disease which may be presumptively linked to service; the Veteran has met the minimum requirements for presumptive service connection; and the evidence shows a qualifying event, injury, or disease in service as the Veteran's MOS of audio specialist has a probability of hazardous noise exposure. The Veteran's service treatment records do not indicate any complaints of or treatment for tinnitus. The Veteran's post-service treatment records include VA treatment records from June 2015 where the Veteran denied having tinnitus. The Veteran was provided with a hearing loss and tinnitus examination in June 2021 where he reported that "he feels he hears well" and actively denied having difficulty with his hearing. The report documents that the Veteran denied having tinnitus. The Board finds that as the Veteran has not been diagnosed with tinnitus, and the record does not include any competent medical evidence of a current disability, service connection for tinnitus is not warranted. While the Veteran is competent to report symptoms of tinnitus, he denied having tinnitus in June 2015 VA medical records and at the June 2021 VA examination. He has not submitted any lay statements or other evidence describing the existence of tinnitus during the appeal period. As such, the Board finds that a preponderance of the evidence is against a finding that the Veteran currently has tinnitus, has had tinnitus at any point during the appeal period, or had tinnitus in close proximity to the appeal period. Accordingly, the Board finds that the claim of entitlement to service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. Entitlement to service connection for sinusitis The Veteran contends that he has sinusitis as a result of his service. The Veteran's service treatment records for his periods of active duty are silent for any complaints of or treatment for sinusitis. Upon enlistment into the Air Force National Guard in November 1989, the Veteran reported sinusitis with no need for a prescription, on his Report of Medical History. However, the November 1989 Report of Medical Examination showed "Normal" results for "Sinuses." There is no other mention of sinus issues in the Veteran's treatment records for the remainder of his time in the National Guard. The July 2021 rating decision included a favorable finding that there was a qualifying event, injury, or disease in service as the Veteran reported sinus issues on his November 1989 Report of Medical History. However, in the August 2021 HLR decision, the RO overturned the favorable finding as the complaint in November 1989 was not during a period of active duty. Private treatment records from July 2013 show that the Veteran complained of sinus congestion. The Board finds that the evidence of record does not support a finding that the Veteran's sinusitis is related to his service. As noted above, the Veteran's service treatment records for his periods of active duty are silent for any complaints of or treatment for sinusitis. Although the Veteran reported a history of sinusitis on his November 1989 Report of Medical History upon enlistment into the National Guard, the Veteran's sinuses were found to be normal upon clinical examination. As the Veteran's sinusitis was not noted at service entry, the presumption of soundness attaches and is not rebutted unless there is clear and unmistakable evidence that it pre-existed service and was not aggravated by service. The Veteran believes that he has sinusitis that is related to his service, but he is not competent to provide a nexus opinion regarding the issue. Although the Veteran is competent to report symptoms of sinusitis, he is not competent to report on the etiology of such. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing and pathology and the Veteran lacks the skills and experience to relate his sinusitis to his service. Therefore, it is outside the competence of the Veteran in this case because 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). The Board finds that the Veteran's lay statements are not competent to establish that he has a current sinus disability that is related to his service. Aside from the Veteran's claim, the evidence of record does not contain any competent evidence suggesting a link between any current sinusitis and his active duty or National Guard service. The Veteran has not been afforded a VA examination to determine the etiology of his disability. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. 79. Here, the Veteran's service treatment records for his periods of active duty and National Guard service do not show any complaints of or treatment for sinusitis, and the Veteran has not submitted any lay evidence regarding an incident in service. Although the Veteran indicated a history of sinusitis on his November 1979 Report of Medical History, he was found to have normal sinuses upon clinical examination and did not report any further sinus issues during his National Guard service. Additionally, there is no indication of a link between the Veteran's complaints of sinusitis and his service aside from his unsupported claim. Indeed, the Veteran has not provided any argument related to his claim for sinusitis. The Board also notes that there is no evidence of continuity of symptomatology since the Veteran's time in service. As such, the Veteran's claim of entitlement to service connection for sinusitis does not meet the low threshold requirements of McLendon, and a VA examination is not necessary. 38 C.F.R. § 3.159(c)(4); see Waters v. Shinseki, 601 F.3d 1274, 127879 (Fed. Cir. 2010). Accordingly, the Board finds that service connection for sinusitis has not been established and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major neurocognitive disorder The Veteran contends that he has an acquired psychiatric disorder other than PTSD, to include major neurocognitive disorder, as a result of his service. In the alternative, the Veteran contends that his acquired psychiatric disorder is secondary to his claimed PTSD. The Board notes that the Veteran also alleges that he has depression. See July 2021 VA Form 20-0996. The July 2021 rating decision included a favorable finding that the Veteran has been diagnosed with the disability of major neurocognitive disorder. The July 2021 rating decision also included a favorable finding that an in-service stressor has been found based on his award of the Vietnam Cross of Gallantry based on his service in the Republic of Vietnam. The evidence of record includes VA treatment records showing that the Veteran reported feeling anxious in June 2002 and July 2004 prior to medical procedures for his hemorrhoids. In June 2021, the Veteran was provided with a PTSD examination where the examiner found that the Veteran had a diagnosis for major neurocognitive disorder. The examiner opined that the Veteran's PTSD was less likely than not due to his service because the Veteran "does not report distress related to his Vietnam experiences," and he "denied having traumatic experiences from combat or Vietnam." The examiner added that the Veteran "has had significant problems with his memory," and noted the diagnosis of Major Neurocognitive Disorder. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major neurocognitive disorder, is remanded to correct a duty to assist error that occurred prior to the July 2021 rating decision on appeal. The AOJ obtained a June 2021 medical opinion prior to the July 2021 rating decision on appeal. However, this medical opinion does not provide an adequate rationale regarding whether the Veteran has an acquired psychiatric disorder other than PTSD that is related to his service. Although the examiner explained that the Veteran did not have PTSD as a result of his service, she did not explain how the Veteran's neurocognitive disorder is not related to his service. Upon remand, an addendum medical opinion should be obtained that addresses all psychiatric disorders diagnosed during the period on appeal, to include the Veteran's reports of anxiety and depression. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding any acquired psychiatric disorder other than PTSD, to include neurocognitive disorder. The examiner should address the following: a) The examiner should list all psychiatric disabilities diagnosed during the period on appeal. The examiner should consider i) private medical records showing the Veteran's reports of feeling anxious in June 2002 and July 2004, and ii) the Veteran's claim that he has depression on a July 2021 VA Form 20-0996. b) For any psychiatric disability diagnosed (other than PTSD), to include neurocognitive disorder, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active duty. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.