Citation Nr: 21008180 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-38 890 DATE: February 11, 2021 ORDER Entitlement to service connection for a bilateral foot condition is denied. Entitlement to service connection for insomnia is denied. Entitlement to service connection for depression is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had a right or left foot disability at any time during or proximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran has had a diagnosable sleep disorder, to include insomnia, at any time during or proximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that the Veteran’s diagnosed unspecified depressive disorder began during her active service or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2012 to September 2012 with active duty for training from September 2000 to March 2001. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in December 2019 with instructions to the Agency of Original Jurisdiction (AOJ) to provide the Veteran VA examinations as to her claimed bilateral foot disability, depression, and insomnia. The AOJ provided the Veteran those examinations in July 2020. Those examinations are responsive to the December 2019 remand directives and provide the information necessary to render a decision as to the issues on appeal. Accordingly, the Board finds that VA at least substantially complied with the December 2019 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The December 2019 remand also included the issues of entitlement to service connection for a lumbar spine condition and entitlement to service connection for ulcerative colitis. The AOJ granted those claims in full in an August 2020 rating decision. Therefore, those issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 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, 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 a bilateral foot condition The Veteran seeks entitlement to service connection for a bilateral foot condition that is manifested by pain and that she asserts is due to wearing boots and to working as a flight attendant during her active service. The question for the Board is whether the Veteran has a current disability that began during her active 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 a current right or left foot disability 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 medical treatment records do not show that the Veteran has been diagnosed with a right or left foot disability. The July 2020 VA examiner evaluated the Veteran and determined that she does not have a diagnosis of a right or left foot disability. Furthermore, the July 2020 VA examination report shows that the Veteran did not have functional loss due to foot pain or other foot symptoms. On examination, she did not have loss of motion, more movement than normal, weakness, fatiguability, incoordination, pain on movement or weight-bearing, swelling, deformity, atrophy, instability, or interference with sitting, standing, endurance, or locomotion due to her reported foot symptoms. Therefore, the July 2020 VA examination indicates that the Veteran’s reported foot symptoms, to include pain, have not reached the level of a functional impairment of earning capacity such that they may be considered a disability even without an associated diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board acknowledges the Veteran’s belief that she has a current bilateral foot disability. She is competent to report pain and other subjective symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not considered competent to provide a diagnosis in this case because the issue is medically complex and requires medical knowledge and expertise the Veteran has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Because her statements are not competent, they are not probative in establishing that she has had a right or left foot disability during or proximate to the pendency of the claim. The Board also acknowledges the Veteran’s representative’s argument in an October 2020 brief that, “The record does not reflect medical opinion for pes planus. The examiner did not provide sufficient rationale explaining why the appellant’s contention does not warrant a medical diagnosis. There is no medical explanation and therefore the examination should be considered as a mere speculation.” However, the record does not show that the Veteran has been diagnosed with pes planus. In addition, the representative has not been shown to be competent to diagnosis a particular foot disability. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). Therefore, there is no competent evidence that the Veteran has been diagnosed with pes planus and an opinion as to such a disability is not required. In addition, the July 2020 VA examination, as a medical profession with a stated specialty of pain medicine, is competent to determine whether a diagnosis is appropriate based on objective testing, in-person examination, and the Veteran’s subjective complaints. The July 2020 VA examiner thoroughly documented his findings in the VA examination report. The representative has not identified any deficiencies in the conduct or recording of the examination. Given the lack of findings on examination, the examiner does not need to provide rationale for not diagnosing the Veteran with a foot disability. Accordingly, the Board finds the July 2020 VA examination to be adequate for decision-making purposes. Neither the Veteran nor her representative has raised any other issues with regard to the duty to assist as they pertain to the issue of entitlement to service connection for a bilateral foot disability. 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). In summary, the record does not show that the Veteran had a right or left foot disability at any time during or recent to the filing of the claim. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a bilateral foot disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for insomnia 3. Entitlement to service connection for depression The Veteran seeks entitlement to service connection for insomnia and depression, which she contends are due to her active service. The question for the Board is whether the Veteran has a current disability that began during her active service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran testified at the October 2019 Board hearing that she had traumatic experiences while serving in Afghanistan and that she believes those experiences have caused depression and insomnia. Her service records confirm that she was deployed to Afghanistan in 2006 and 2009. Documents related to the deployments indicate that she was deployed at that time in her capacity as a member of the Air Force Reserves. However, the Board notes that she is not diagnosed with post traumatic stress disorder. The report of a V A psychiatric examination dated in August 2020 noted the service in Afghanistan but noted that she had denied PTSD symptoms. The examiner concluded that there was no evidence which suggested that her depressive symptoms were related to events occurring while she was in service. The Veteran also testified that she believes her depression and insomnia are related to experiences she had as a result of becoming pregnant during her service. Specifically, she testified that she was immediately grounded from flying as a flight attendant once she notified her supervisor of the pregnancy and that she could not get a waiver in time to allow her to fly during the pregnancy. As a result, she lost pay. In addition, she had to wait after giving birth for clearance to fly again, “there were things going on inside of the squadron”, and she “was being pressured to make up time without having the proper time to do it.” Eventually she was denied the option to re-enlist because she appeared to be behind in her training. She testified that she feels she fell into a post-partum depression and has lost sleep due to stress and worrying from that chain of events. The record shows that the Veteran gave birth in October 2011. Therefore, the pregnancy and the events during the pregnancy did not occur during her period of active service. However, the record also shows that the Veteran was put on restrictions during her period of active service and after her separation from active service in September 2012, and that in July 2014 she was not recommended for re-enlistment because “She has not been able to progress in training due to continued challenges in her personal life”. Thus, the record shows that the events reported by the Veteran at least partially occurred during her period of active service or may otherwise be related to her period of active service. The Veteran was provided a VA examination in July 2020 to determine whether she has a current diagnosed psychiatric disability, to include insomnia and depression, and whether any such diagnosed disability may be related to service. The July 2020 VA examiner diagnosed the Veteran with unspecified depressive disorder based on her examination of the Veteran. The examiner further stated that the Veteran does not have a diagnosis of insomnia or other sleep disorder, as she denied difficulty sleeping at the current examination and there is no evidence of difficulty sleeping in the available medical records. Regarding the diagnosed unspecified depressive disorder, the examiner opined that the disability was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that, at the examination, the Veteran explained that she lost out on flying time primarily due to a custody issue with her daughter’s father rather than due to issues within her squadron. The Veteran also indicated that this issue contributed to her falling behind in her training. Lost time during her pregnancy and a health issue that arose after her active service period in 2013 also contributed to her falling behind in her training. Although the Veteran has reported that she fell into a post-partum depression following her pregnancy, there is no evidence in the records to support that assertion. There are no reports of depressive symptoms in the medical records and no evidence in the available medical record suggesting that the depression has been a chronic issue or related to events occurring while the Veteran was on active service or related to her pregnancy. Numerous depression screens from December 2011 through September 2019 are listed as negative. The examiner emphasized that the Veteran was not recommended for re-enlistment in July 2014 due to continued challenges in her personal life, which “seems to be an accurate assessment given that the veteran reports she was dealing with significant custody issues with her daughter’s father following her daughter’s birth and those issues interfered with her ability to fly.” The Board finds the VA examiner’s opinion to be probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner explained why a diagnosis of insomnia or another sleep disorder is not appropriate for the Veteran. She also explained that the Veteran’s unspecified depressive disorder did not manifest during her active service and is due to factors unrelated to service, including the Veteran’s inability to re-enlist in July 2014 due to continued challenges in her personal life at that time. The Board acknowledges the Veteran’s belief that she has a diagnosable sleep disorder and that her diagnosed unspecified depressive disorder is related to her active service. She is competent to report difficulty sleeping and psychiatric symptoms such as depression. See Layno, 6 Vet. App. at 469. However, she is not considered competent to provide a diagnosis in this case. In addition, she has related her current diagnosed psychiatric disability to a number of factors, including factors that occurred prior to or after her period of active service. She is not considered competent to attribute the currently diagnosed psychiatric disability to the reported in-service factors as opposed to the reported pre- and post-service factors because the issue is medically complex and requires medical knowledge and expertise she has not been shown to have. See Jandreau, 492 F.3d at 1377 n.4. Because her statements are not competent, they are not probative in establishing that she has had a diagnosable sleep disorder or in attributing the diagnosed unspecified depressive disorder to her active service. As such, her statements do not weigh against the probative value of the July 2020 VA examiner’s opinion. The Board also acknowledges the Veteran’s representative’s argument in the October 2020 brief that the Veteran “was not afforded an opportunity explaining the inconsistency between the contention and military service records. We argue there is no sufficient evidence to conclude the lack of nexus between her contention and the inconsistent medical records over a telephone screening.” The July 2020 VA examination report reflects that the examination was not conducted by telephone, but rather was conducted via video conferencing. The representative has not presented any arguments as to why an examination via video conferencing hinders the Veteran’s ability to discuss her medical and personal history. The examination report reflects that the Veteran was asked about her pre-service, in-service, and post-service social and family history, occupational and educational history, mental health history, and legal and behavioral history. It also reflects that the examiner took extensive notes on each of those aspects of the Veteran’s history. There is no indication in the examination report that the Veteran was denied an opportunity to describe or explain her history or to discuss any perceived inconsistencies between her contentions and the information contained in the service records. The Board therefore concludes that the July 2020 VA examination was thorough and adequate for decision-making purposes. Neither the Veteran nor her representative has raised any other issues with regard to the duty to assist as they pertain to the issues of entitlement to service connection for insomnia and entitlement to service connection for depression. See Scott, 789 F.3d at 1381; Dickens, 814 F.3d at 1361. In summary, the record does not show that the Veteran had a diagnosable sleep disorder, to include insomnia, at any time during or proximate to the pendency of the claim. In addition, the preponderance of the evidence is against finding that the Veteran’s diagnosed unspecified depressive disorder began during her active service or is otherwise related to an in-service event, injury, or disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claims for entitlement to service connection for insomnia and entitlement to service connection for depression. Because the preponderance of the evidence is against the claims, the doctrine of reasonable doubt is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); see also Brammer, 3 Vet. App. at 225; Gilbert, 1 Vet. App. at 49. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.