Citation Nr: 21006485 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 07-14 462 DATE: February 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is granted. Entitlement to service connection for hyperumbilical pain is denied. Entitlement to service connection for left hydrocele, claimed as a groin injury is denied. Entitlement to a rating in excess of 10 percent for a left wrist injury, diagnosed as a crush injury is denied. REMAND Entitlement to TDIU is remanded. FINDINGS OF FACT 1. It is at least as likely as not that a current non-PTSD acquired psychiatric disorder onset during service and/or was otherwise related to active duty service. 2. The Veteran does not have a current disorder of hyperumbilical pain. 3. The Veteran’s groin injury is not etiologically related to active duty service. 4. The Veteran’s left wrist disability is manifested by swelling and pain on use and manipulation, limited flexion and extension; ankylosis has not been found. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder other than PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a stomach disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left hydrocele, claimed as a groin injury have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating in excess of 10 percent for a left wrist injury, diagnosed as a crush injury have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, 4.118, Diagnostic Codes (DC) 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to February 1975. This appeal was remanded by the Board in July 2019. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, additional medical records were obtained and associated with the claims file, and new VA opinions were obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in August 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge 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 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. The three-element test for service connection requires evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD The Veteran claims service connection for a psychiatric disorder stemming from an in-service assault in September 1975. Service connection for PTSD was denied in a final May 2001 Rating Decision. That decision was based on the lack of a clear diagnosis of PTSD. It was also based on a February 2001 opinion based on the Veteran’s symptoms (e.g. substance abuse) rather than the disorders themselves. However, based upon the Veteran’s competent and credible lay statements, the Board determines that service connection for an acquired psychiatric disorder other than PTSD, is warranted. Specifically, the Veteran has current diagnoses of depression and substance use disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). First, the Veteran’s lay statements indicate the onset of a psychiatric disorder in or within a year of service. In several statements, including April 2018, May 2018, and June 2018 statements and April 2018 hearing testimony, the Veteran reports that while serving guard duty at Fort Ord, CA, he was accosted by several white soldiers who wanted to enter a restricted area. The Veteran recounts race-baiting and a beating which included a kick to the groin, before the Veteran lost consciousness. The Veteran reports that he was struck during daylight, and that it was dark when he regained consciousness. His testimony is consistent with a September 25, 1974 treatment record documenting a kick to the groin which required hospital treatment. In addition to the Veteran’s credible testimony, the Board the finding in its June 2018 decision granting service connection for a traumatic brain injury (TBI) that the Veteran’s account of his in-service assault was credible. As prior determinations of credibility are binding on future Board decisions, the Board therefore finds the testimony of the Veteran credible evidence that the in-service assault occurred. See Smith v. Wilkie, No. 18-1189 (2020). Moreover, the Board finds that the Veteran’s competent and credible statements of psychiatric distress since service place his appeal at least in equipoise. Indeed, the Veteran relates in an August 2006 admission note, in a September 2006 statement, and in March 2017 treatment, that he began using drugs in 1975 to cope with mood-related symptoms stemming from the assault. In arriving at this conclusion, the Board notes several negative nexus opinions, including his February 2019 C&P examination. Specifically, the February 2019 examiner denied service connection because “acquired psychiatric disorder” is not a mental health diagnosis. This conclusion is based on a clear misunderstanding of the instructions provided to the examiner. The Veteran has non-PTSD diagnoses and the relevant question is whether they are related to service. Further, such negative evidence is based on the Veteran’s lack of psychiatric treatment or documented symptoms in or within a year of service. As the Veteran’s attorney points out in July 2020 arguments, an August 1978 VA Report describes “trouble concentrating, lack of interest, depressed easily, nervous and no control of emotions, resorting to drug use.” While this treatment is dated three years from the Veteran’s service, and does not show continuity of symptomatology, the Board nonetheless finds that it corroborates the Veteran’s lay statements of suffering from mood and substance use disorders since service. The Board also notes that the Veteran did not seek service connection for a psychiatric disorder until 1993, despite previously seeking service connection for other disorders. This finding is outweighed, however, by the Veteran’s lay statements that his mood disorders arose out of his in-service assault. The totality of the evidence, including the Veteran’s lay statements and the August 1978 examination report, warrants finding that the Veteran’s non-PTSD psychiatric disorders were indeed present since, or at least within a year of separation from service. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran’s depression and substance use disorder onset in service and are related to service. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for an acquired psychiatric disorder other than PTSD. 2. Entitlement to service connection for hyper-umbilical pain The Veteran claims service connection for “hyper-umbilical pain,” or pain surrounding the navel. He asserts that his disability onset in service. Unfortunately, because the evidence does not indicate that the Veteran has a current diagnosis of hyper-umbilical pain, the claim must be denied. The initial question for the Board is whether the Veteran has a current disability that either began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have current hyper-umbilical pain and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records, to include his February 1975 exit examination report, show no complaints for treatment of hyperumbilical pain. Even affording the Veteran the benefit of the doubt, any ulcer that caused hyperumbilical pain has since resolved. As noted by the February 2019 examiner, the Veteran’s ulcer pain started in 1974 and manifested as difficulty lying down and regurgitation. The remainder of the Veteran’s service records do not reflect hyperumbilical pain. Moreover, hyperumbilical pain during the appeal period is not shown by the available medical evidence. During the appeal period, the Veteran submitted treatment records dating from approximately 1978. Specifically, the Veteran’s 1978 VA examiner conducted a general examination. While the Veteran endorsed numerous other disabilities, including stomach disabilities, hyperumbilical pain was not found. A February 2019 C&P examination confirms the lack of a current diagnosis of a disorder that would cause hyperumbilical pain. Specifically, the examiner was unable to diagnose a specific condition, to include any that would cause pain above the navel. Consequently, the medical evidence of record shows no treatment for hyperumbilical pain during the period on appeal. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Because the competent medical evidence from the period on appeal does not indicate hyperumbilical pain, service connection is denied. 3. Entitlement to service connection for a left hydrocele, claimed as a groin injury The Veteran claims service connection for a scrotal disorder, diagnosed as left hydrocele, and claimed as a groin injury. Specifically, he asserts that it arose from the kick to the groin he sustained while serving on guard duty at Fort Ord. In the alternative, the Veteran claims service connection based on chronicity of symptomatology. Based on the evidence of record, service connection is not warranted. First, the Veteran’s service records do not indicate a chronic groin disability in service or within an applicable period after separation. The record dated January 1975 documents the Veteran’s noticing two knots in the left groin area, after lifting heavy objects for 5 days. Moreover, no groin disability was noted in the Veteran’s final in-service February 1975 examination. The evidence indicates that a groin abcess was treated in April 1976. The Veteran, through counsel, asserts that this abcess arose within the one-year post-service period and should be subject to service connection as a chronic disorder. Unfortunately, the Veteran’s groin abcess cannot be awarded service connection as a “chronic disorder” as it is not one of the enumerated disorders afforded this presumption. See 38 C.F.R. §§ 3.307, 3.309. Therefore, continuous symptoms have not been shown based on the clinical evidence. Moreover, despite stating that he has dealt with scrotal pain and painful ejaculation since this event, the Veteran does not explicitly assert that he has had continuous scrotal symptoms since service. Accordingly, service connection is not warranted based on continuity of either the medical evidence or the Veteran’s statements. Next, service connection cannot be granted because there is no indication from the competent medical evidence of a nexus between the Veteran’s symptoms of a scrotal disorder and his active service. The Veteran’s November 2019 examiner noted a diagnosis of left hydrocele. However, the examiner could not determine when this disorder onset. Moreover, the examiner explained that the only disorder diagnosed during the period on appeal, a hydrocele, is not likely to occur from a kick, blow, or any other trauma to the scrotum. This opinion demonstrates that the Veteran’s disorder is more likely a natural occurrence and less likely to come from a service-related etiology. In arriving at this conclusion, the Board acknowledges the Veteran’s statements, directly and through counsel, relating his current disorder to active service. Specifically, the Veteran reports consistent groin pain since service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of a scrotal disorder. See Jandreau, 492 F.3d 1372 at 1377, n.4. To the extent that he is competent to report pain in the area since service, the Board finds that Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. The Veteran is not competent to identify a nexus between his service and his current disorder. While the Board does not dispute the Veteran’s credibility in describing his symptoms, the weight of the medical evidence is against a finding that they are etiologically related to the injury he sustained during active duty. Therefore, the Veteran’s lay statements that his current disorder was incurred due to receiving a kick to the testicles are found to lack competency. In sum, the most probative evidence of record shows no link between the Veteran’s groin disorder and an event, injury, or disease incurred in service. Based on the evidence of record, the Veteran’s claim must be denied. Increased Rating 4. Entitlement to a rating in excess of 10 percent for a left wrist injury, diagnosed as a crush injury The Veteran is service connected for multiple injuries to the left hand, to include the wrist. The fingers and thumb are service-connected, but are not claimed as part of this appeal. The Veteran, through counsel, claims entitlement to a 40 percent rating for limitation of flexion of the dominant hand, and a 30 percent rating for limitation of extension. Unfortunately, the Board is unable to grant the ratings sought. As an initial matter, when considering rating the Veteran’s disability under this diagnostic code, the Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, as a rating in excess of 10 percent requires ankylosis rather than restricted range of motion, the Deluca criteria cannot be used to achieve the higher rating for this period. Johnson v. Brown, 9 Vet. App. 7 (2006). As ankylosis is not reflected by the evidence of record, including the Veteran’s February 2019 C&P examination report, a rating in excess of 10 percent for a left wrist injury is not warranted. Moreover, under Diagnostic Code 5215, limitation of motion of the wrist warrants a ten percent rating for either limitation of dorsiflexion to 15 degrees, or limitation of palmar flexion in line with the forearm under DC 5215. Ten percent is the maximum schedular rating warranted for a wrist injury, whether it is the Veteran’s dominant or non-dominant wrist. The manifestations alleged as compensable are pain and limitation that are rated under DC 5215. In considering this rating, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the Veteran complained of flare-ups on use and manipulation of the hand. However, the only avenue for a higher rating under this DC is ankylosis. The existence of a measurable range of motion throughout the period on appeal, even in light of functional impairment on flare-ups and on repetitive testing, prevents a rating in excess of that awarded. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his disability is worse than the ratings he currently receives. Specifically, the Veteran complains that his employment as a laborer is limited due to his inability to pull, push, write, or grip with his dominant hand. He also reports significant pain upon any contact. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. In addition, the Board finds that the separate grant of service connection for loss of use addresses the Veteran’s arguments for two separate ratings for his wrist disability. 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. REMAND 5. Entitlement to a rating of total disability based on individual unemployability (TDIU) is remanded. The medical evidence of record indicates that he may be unemployable due to service-connected disabilities. In a VA Form 9 dated May 2007, the Veteran indicated that he cannot work due to symptomatology associated with psychiatric and his left (dominant) hand disability. Moreover, an October 2011 SSA disability determination indicates that he is disabled for SSA purposes. However, it is not clear whether the Veteran’s fatigability, inability to focus, and mood symptoms are related to service-connected psychiatric symptoms. To date, the Veteran’s service-connected disabilities did not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). However, given that service connection for an acquired psychiatric disorder has been granted, this may change. As such, after a disability rating is assigned for the Veteran’s psychiatric disorder, the issue of entitlement to TDIU should be readjudicated.   The matters are REMANDED for the following action: 1. Add all outstanding VA treatment records not currently associated with the Veteran’s claims file. If the Veteran has obtained treatment outside of VA, he should be afforded an opportunity to add any applicable records. 2. After a disability rating has been assigned for the Veteran’s acquired psychiatric disorder, and after all additional development deemed necessary by the RO has been completed, readjudicate the issue of entitlement to TDIU. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia