Citation Nr: A21020109 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200522-88785 DATE: December 16, 2021 ORDER Service connection for pes planus is denied. Service connection for left ankle strain is denied. Service connection for right ankle strain is denied. Service connection for shin splints is denied. Service connection for gastroesophageal reflex disease (GERD) is denied. Service connection for an acquired psychiatric disorder is granted. FNDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of pes planus. 2. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of a bilateral ankle disability. 3. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of shin splints. 4. The preponderance of the evidence of record is against a finding that the Veteran has a current diagnosis of GERD. 5. Resolving reasonable doubt in the Veteran's favor, the most probative evidence of record demonstrates that the Veteran's acquired psychiatric disorder manifested during service, since service, and is related to his active service. 6. The Veteran's personality disorder may not be service connected as a matter of law. 7. The Veteran's currently diagnosed Alcohol Use Disorder, Moderate is the result of his own willful misconduct and thus a bar to establishing service connection. CONCLUSIONS OF LAW 1. The criteria for service connection for pes planus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection bilateral ankle disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for shin splints have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303. 5. The criteria for service connection for acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. A personality disorder is not a disease or injury within the meaning of the law providing compensation. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 2008 to January 2011 and discharged under honorable conditions. A rating decision was issued under the legacy system in December 2018 and the appellant submitted a timely notice of disagreement (NOD). In March 2020, the agency of original jurisdiction (AOJ) issued a Statement of the Case (SOC). The appellant opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a timely May 2020 VA Form 10182, Decision Review Request: Board Appeal (NOD) identifying the SOC; therefore, this is the decision on appeal. On Direct Review, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. In November 2021, evidence was added to the claims file during a period of time when new evidence was not allowed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As a preliminary matter, the Board notes that no VA examinations were requested in relation to claims for service connection on appeal for pes planus, bilateral ankle, shins, or GERD. The record shows a VA contract examination was afforded for the claimed headaches. In this regard, the Board finds there was no pre-decisional duty to assist error on the part of the AOJ for not providing VA examinations for all the issues claimed. 38 C.F.R. § 20.802 (a). Prior to the AOJ adjudication, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims. See 38 U.S.C. § 5103A(a). Essentially, the weight of evidence is against a finding that the claimed pes planus, bilateral ankle, shins, or GERD had its onset during active service or within one year of separation from active service or competent evidence even suggesting that the claimed conditions may be associated with service. As discussed in detail below, there was no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon, 20 Vet. App. at 81. This standard was not been met in this case. Further, the Board also finds sufficient competent medical evidence of record to make a decision on the claims. 1. Entitlement to service connection for pes planus. 2. Entitlement to service connection for bilateral ankle disability. 3. Entitlement to service connection for shin splints. 4. Entitlement to service connection for GERD. The Veteran's original claim filed in September 2018 was denied by rating decision of December 2018. The Veteran has not advanced any specific contention other than his general application for service connection. Upon review of the evidence, the Board finds the weight of the evidence is against the finding of a present disability for which entitlement for service connection can be established. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the evidence does not indicate a current diagnosis of related to pes planus, bilateral ankle, shin splints, or GERD at any point during the course of this appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a disability manifested by pes planus, ankles, shin splints, or GERD. A Report of Medical Examination of August 2010 shows "pes planus, moderate, symptomatic" but the examiner at the time only indicated a diagnosis related to bilateral toenails. There was no other documentation of pes planus in his service treatment records. In fact, the Veteran specifically denied having any foot trouble, impaired use of legs or feet, any joint pain, or any trouble related to the lower extremities. See Report of Medical History dated August 2010. Non-VA treatment records submitted by the Veteran in March 2020 shows treatment during his period of active duty from June to October 2010. See Tripler AMC records received March 2020. The document listed problems including "ulcerative mucositis of the ENT region" and "shin splints". However, the medical records do not show any complaints, treatment, or clinical diagnosis for the problems listed. Notably, treatment records consistently showed no residuals or symptoms reported by the Veteran to suggest a chronic disability. The Veteran's post-service medical records immediately following his discharge from service are absent for any complaints, findings, or treatment of related to the feet or pes planus, GERD, or shin splints. Likewise, subsequent treatment records are absent for any residuals or symptoms to suggest a chronic disability. Similarly, the records are absent for any current findings or ongoing treatment for pes planus, bilateral ankles, shin splints, or GERD. The Veteran has not submitted any evidence to the contrary. The Board is cognizant of a recent Federal Court decision of Saunders v. Wilkie, holding that "pain alone without an accompanying diagnosis of a present disease, can qualify as a disability." 886 F.3d 1356 (Fed. Cir. 2018). However, the Federal Circuit clarified that to establish a disability, "the veteran will need to show that [his] pain reaches the level of functional impairment of earning capacity." Id. at 1368. Regarding pes planus, the record shows that the Veteran's one time pes planus symptom in service have not resulted in any residuals or in a current disability. Regarding shin splints and GERD, although listed as a problem from an outside provider during active duty, the records do not show any ongoing treatment or persistent symptoms reported or that the conditions resulted in a current disability. Regarding bilateral ankle, VA treatment record shows a one-time notation of the Veteran's report of "left ankle pain" with onset in September 2018. However, his described symptoms do not reach the level of causing functional impairment in earning capacity as contemplated in Saunders. There is no diagnosis or finding related to the ankles or any of the claimed disabilities. To the extent that the Veteran claims he has a current disability, his lay assertions are not considered competent medical evidence. Although he is certainly capable of describing the history in this case and competent to report symptoms which are within the realm of his personal experience, he is not competent to render a medical diagnosis of the claimed pes planus, bilateral ankles, shin splints, or GERD, as this requires medical expertise and the ability to interpret radiographic testing. Davidson v. Shinseki, 581 F.3d 1313 (2009). Further, any assertion of a current disability is outweighed by the medical evidence as treatment records consistently showed no residuals or symptoms reported by the Veteran to suggest a chronic disability. For this purpose, the Veteran's statements have limited probative value and are outweighed by the competent medical evidence of record. The Board therefore finds that service connection for pes planus, bilateral ankle, shin splints, or GERD is not warranted as there is no current diagnosis of a disability or objective medical evidence indicating the Veteran experiences pain that causes a functional impairment of his earning capacity owing to his military service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for pes planus, bilateral ankle, shins, or GERD. Accordingly, the claims must be denied. 5. Entitlement to service connection for an acquired psychiatric disorder. As explained below, the Board finds that service connection for an acquired psychiatric disorder is warranted. In his original claim, the Veteran filed separate claims for stress, psychotic depressive reaction, sleep disturbances, mental disorder, depression fatigue, and anxiety condition. As the claims involve a psychiatric disorder, the Board finds it appropriate to consolidate the issue as entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). The Veteran's service treatment records show diagnoses established during active duty. A record of December 2009 shows diagnosis of "Adjustment disorder with anxiety" and a note by the examiner that the Veteran was "seeing a provider for depression". The examiner noted medication taken for depression. Similar finding of depression was noted in January 2010. The record shows a September 2010 Report of Behavioral Health Evaluation which was for when the Veteran was considered for administrative separation because of "Misconduct Ch. 14". The examining psychologist indicated DSM-IV diagnosis of "Adjustment disorder with anxiety and depressed mood per review of medical records." On his separation Report of Medical History in October 2010, the Veteran reported anxiety, trouble sleeping, and depression. The Veteran was discharged Under Honorable Conditions due to pattern of misconduct. Post-service VA treatment records of February 2014 shows notation of PTSD and depression, but he had a negative PTSD screen at the time. A subsequent record of March 2014 shows a diagnosis of "Affective psychosis". VA treatment record of August 2018 indicates a provisional diagnosis of "Major depressive disorder, Recurrent". Another October 2018 treatment record shows "maybe adjustment disorder or possibly PTSD" or "maybe bipolar II". VA treatment record of March 2019 shows positive PTSD screen and depression. A subsequent record of December 2019 shows a mental status examination indicating a diagnosis of "Major Depressive Disorder". Here, based on probative medical and lay evidence of record pertaining to the manifestations of the Veteran's psychiatric symptoms during service and subsequent to service, the Board finds that his psychiatric disorder is etiologically related to service. Further, taking into consideration the circumstances of the Veteran's service as shown by the official record, including all pertinent medical and lay evidence, the Board finds that service connection for an acquired psychiatric disorder has been established. 38 U.S.C. § 1154 (a). The Board recognizes the record reflects other mental diagnoses of Unspecified Personality Disorder, Alcohol Use Disorder, Major Depressive Disorder, Adjustment Disorder with Anxiety, and Affective Psychosis. However, VA is precluded from differentiating the symptoms of the Veteran's current disability and those of his other psychiatric symptoms in the absence of clinical evidence that clearly shows such a distinction. Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Additionally, it must be noted that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303(c), 38 C.F.R. § 4.9 (congenital and developmental defects, including personality disorders, are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes). Likewise, the Board notes that payment of compensation for a disability of one's own alcohol abuse is precluded by law. Meaning, the diagnosed Alcohol Use Disorder, Moderate, is the result of the Veteran's own willful misconduct and thus a bar to establishing service connection. See 38 U.S.C. § 105; 38 C.F.R. §§ 3.1 (n), 3.301. Lastly, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms. The regulation "clearly contemplates that several separately diagnosed disorders may have a singled manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder." Id. at 1381 (referring to 38 C.F.R. § 4.14 ). "The critical element is that none of the symptomatology for any one of [the conditions] is duplicative of or overlapping with the symptomatology of the other [conditions]." Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, the Veteran would not be entitled to separate ratings for symptoms or impairment of Major Depressive Disorder, Adjustment Disorder with Anxiety, and Affective Psychosis, as 38 C.F.R. § 4.14 provides that rating such manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.