Citation Nr: 21008124 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-40 857 DATE: February 11, 2021 ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD. 3. Entitlement to service connection for glaucoma. 4. Entitlement to service connection for hypertensive retinopathy. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disability other than PTSD is denied. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for hypertensive retinopathy is denied. FINDINGS OF FACT 1. The preponderance of competent and credible evidence weighs against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a PTSD under the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders. 2. The preponderance of competent and credible evidence weighs against finding that the Veteran has an acquired psychiatric disorder that was demonstrated in service or that there is a nexus between an acquired psychiatric disorder and service. 3. The preponderance of competent and credible evidence weighs against a finding that glaucoma was demonstrated in service or that there is a nexus between glaucoma and service. 4. The preponderance of competent and credible evidence weighs against a finding that hypertensive retinopathy was demonstrated in service or that there is a nexus between hypertensive retinopathy and service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 2. The criteria for service connection for an acquired psychiatric disability other than PTSD have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 3. The criteria for service connection for glaucoma have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017). 4. The criteria for service connection for hypertensive retinopathy have not been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1958 to June 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The Veteran’s case was subsequently transferred to VA’s Regional Office (RO) in Detroit, Michigan. When this case was previously before the Board in July 2020, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The case has since been returned to the Board for further appellate action. Service Connection Claims The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Veteran has not been afforded examinations for his claimed glaucoma or claimed hypertensive retinopathy. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (West 2014). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed.Cir. 2003). As will be discussed below, based on the facts of this case, VA has no duty to provide a VA examination or obtain a medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In the instant case, there is no presumed service connection because the Veteran’s claimed disabilities did not manifest to a compensable degree within one year of separation from service. In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). PTSD and Other Acquired Psychiatric Disabilities Establishment of service connection for PTSD requires: (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) (2017); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board acknowledges that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the RO on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s claim was certified to the Board after August 4, 2014, the diagnosis of his PTSD should conform to DSM-V. See 38 C.F.R. § 4.125 (a) (2017). The Veteran contends that service connection is warranted for an acquired psychiatric disability as related to his active duty service. He indicated in a February 2016 statement that the non-battle death of J.S. was a stressful incident that took place during field exercises in Fort Bragg, North Carolina, while he was assigned to the 82nd Airborne Division from June 13, 1958, to June 10, 1960. The Veteran has also reported extreme racism and acts of harassment and violence among fellow military colleagues. In a November 2015 treatment note from A.K., the Veteran was diagnosed with PTSD, chronic; major depressive disorder, recurrent episode, moderate; and generalized anxiety disorder. VA treatment records also show diagnoses of depression, cognitive impairment, and unspecified depressive disorder. In a June 2019 VA examination, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran did not meet the DSM-V criterion for PTSD. The examiner stated that based on the review of the Veteran’s electronic folder, VA treatment records, and information provided by the Veteran, he met the DSM-V criteria for major neurocognitive disorder, and the condition was less likely than not related to his service. The Board remanded this claim in July 2020 to obtain an addendum opinion. In response to the Board’s remand, an addendum opinion was obtained in September 2020 in which the examiner stated that service treatment records were silent for mental health; separation medical examination in April 1960 was silent for mental health. Thus, it was the opinion that Veteran's diagnosed cognitive impairment disorder, major neurocognitive disorder, was at least as likely as not secondary to Alzheimer's Disease with onset during post-discharge years. The examiner stated that the Veteran's diagnosed unspecified depressive disorder was at least as likely as not due to significant cognitive impairment and presented with symptoms of depressed mood and anxiety. The examiner stated that per reviewed records, the Veteran had not met diagnostic criteria for PTSD, major depressive disorder, or generalized anxiety disorder. The examiner opined that the diagnosed major neurocognitive disorder and unspecified depressive disorder less likely than not began in or were otherwise etiologically related to the Veteran’s active service. In this case, in regards to the claim for PTSD, the Board finds that Hickson element (1) is not satisfied. To this point, the Board notes that in a November 2015 treatment note from A.K., the Veteran was diagnosed with PTSD. However, the PTSD diagnosis was not consistent with DSM-V, as required by VA regulation. The June 2019 and September 2020 VA examiners found that the Veteran did not meet the DSM-V (diagnostic) criterion for PTSD. As such, the Board finds that the competent and probative evidence of record does not reflect that the Veteran has had PTSD at any time during the appeal. Proof of a current disability is a threshold to establishing service-connection for PTSD. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the claim for service connection for PTSD is denied as Hickson element (1) is not met. In this case, in regards to the claim for an acquired psychiatric disability other than PTSD, per the findings of the July 2020 VA examiner, the Board finds that Hickson element (1) is satisfied for cognitive impairment disorder, major neurocognitive disorder, and unspecified depressive disorder. As to Hickson element (2), although the non-battle death of J.S. could not be verified, the Veteran also reported extreme racism and acts of harassment and violence among fellow military colleagues. As such, Hickson element (2) is at least arguably met for the issues of acquired psychiatric disabilities other than PTSD. As to Hickson element (3), the Board notes again that the September 2020 examiner opined that the diagnosed cognitive impairment disorder and major neurocognitive disorder was at least as likely as not secondary to Alzheimer's Disease with onset during post-discharge years. The examiner stated that the Veteran's diagnosed unspecified depressive disorder was at least as likely as not due to significant cognitive impairment and presented with symptoms of depressed mood and anxiety. The examiner opined that the diagnosed major neurocognitive disorder and unspecified depressive disorder less likely than not began in or were otherwise etiologically related to the Veteran’s active service. The Board finds the VA examination reports and opinions to be of great probative value. Indeed, the examiners considered the Veteran’s contention, the claims file, and clinical medical evidence before providing negative etiological opinions. The Board notes that medical reports must be read, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). To this point, the September 2020 VA examiner found that it was less likely than not that the Veteran’s disabilities began in or were otherwise etiologically related to his active service, she instead linked cognitive impairment disorder and major neurocognitive disorder to Alzheimer’s Disease. The Board notes that the Veteran is not service-connected for Alzheimer’s Disease. The examiners’ negative opinions were supported by a medical rationale. There are no other etiological opinions of record. Based upon review of the evidence of record, with regard to Hickson element (3), evidence of a nexus between the claimed in-service disease or injury and the current disability, the Board finds that this element is not met for the claim of service connection for an acquired psychiatric disability other than PTSD. The Board acknowledges that the Veteran is competent to testify as to his beliefs. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit-of-the-doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). Glaucoma and Hypertensive Retinopathy The Veteran filed his claim for service connection for glaucoma and hypertensive retinopathy in December 2015. Service treatment records do not show complaints of or treatment for these conditions. The Veteran has not provided competent and credible evidence as to how or why these disabilities are related to service. In this case, the record does not indicate that the disabilities or signs and symptoms of the glaucoma or hypertensive retinopathy may be associated with active service. The Board acknowledges that the Veteran is competent to testify as to his beliefs that he has glaucoma and hypertensive retinopathy and that service connection is warranted. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical diagnosis or opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the diagnosis or etiology of any current condition, as such are not readily subject to lay observation. Charles, 16 Vet. App. 370, 374-75; Layno, 6 Vet. App. 465. As such, the claims for service connection for glaucoma and hypertensive retinopathy are denied. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.