Citation Nr: 21010023 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-23 671 DATE: February 23, 2021 ORDER Entitlement to a compensable rating for service-connected allergic rhinitis is denied. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for a deviated septum is remanded. FINDINGS OF FACT 1. Entitlement to a compensable rating for service-connected allergic rhinitis could not be established without further examination; the Veteran did not report for a scheduled VA examination and did not provide good cause for his failure to report. 2. The preponderance of the evidence is against a finding that the Veteran’s current PTSD disability is medically linked to an in-service stressor. 3. The preponderance of the evidence is against a finding that any other acquired psychiatric disorder, to include major depressive disorder, was caused by or incurred in service. CONCLUSIONS OF LAW 1. Entitlement to an increased (compensable) rating for allergic rhinitis is denied because the Veteran failed to report for his scheduled VA examination without good cause. 38 C.F.R. § § 3.655(b) (2019). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1968 to July 1970. This case comes on appeal of an October 2011 rating decision. These matters have previously been before the Board on multiple occasions. In December 2017, the Veteran and his wife testified before the Board at a video conference hearing. In a February 2018 decision, the Board remanded these matters. Notably, regarding the claim for an increased rating for allergic rhinitis, the Veteran had testified at his hearing that the condition had worsened since his last VA examination. Accordingly, the Board remanded that issue for a new examination to obtain a current evaluation of the disability’s severity. Regarding the claims for service connection for obstructive sleep apnea and a deviated septum, the Veteran had proposed multiple theories of contention at his hearing. As no medical expert had opined on those proposed etiologies, the Board remanded to obtain examinations and medical opinions. Regarding the claim for service connection for PTSD, the Veteran testified that there were private medical records that were not associated with the claims file. The Board thus remanded the issue to instruct the agency of original jurisdiction (AOJ) to make attempts to obtain those records and to afford the Veteran a new examination in light of both the new records as well as the possibility that a psychiatric condition pre-existed service. Subsequent to the Board’s February 2018 remand, the AOJ attempted to schedule the Veteran for the examinations as instructed by the Board. In November 2018, the Veteran canceled his examinations, stating to the examination schedulers that he wanted to cancel all claims and that he would be contacting the AOJ. In March 2019, the AOJ contacted the Veteran regarding his expressed desire to cancel his claims, notifying him of the methods in which he could validly do so. The Veteran did not respond to this communication. Accordingly, since the Veteran had not validly withdrawn his claims, the AOJ issued a September 2019 supplemental statement of the case (SSOC) continuing the denial of the claims. The case was returned to the Board in November 2019. At that time, the Board noted that the Veteran’s representative had not been copied on the AOJ’s communication to the Veteran regarding withdrawal, or on the SSOC. In order to afford the Veteran every opportunity to have his claims adjudicated or withdrawn according to his wishes, the Board once again remanded the case, with instructions to ensure that the Veteran’s representative was copied on communications and to attempt once again to schedule the examinations discussed above. In December 2019, the AOJ once again attempted to schedule the Veteran for examinations for all claimed issues. In January 2020, the Veteran once again canceled the examination scheduling. In July 2020, the AOJ issued a new SSOC and the Veteran’s representative was copied on that communication. In December 2020, the Board attempted to clarify the issues the Veteran wished to appeal but did not receive a response from either the Veteran or his representative. The Veteran has not formally expressed his desire to withdraw his appeal in accordance with VA regulations, either to the AOJ or to the Board. 38 C.F.R. § 19.55. Accordingly, despite the Veteran’s indications to examination schedulers, and his consistent cancellation of examinations, the Board will proceed in its adjudication of the matters before it. The Board notes in passing that a letter informing the Veteran of an upcoming hearing, and the option to participate in that hearing virtually, was erroneously sent by the Board on October 7, 2020. Indeed, the Veteran’s prior hearing request had already been addressed by the Board, and as discussed above, is no longer pending. Accordingly, the Board will proceed with adjudication based on the evidence of record. 1. Entitlement to a compensable rating for service-connected allergic rhinitis When entitlement to an increase in benefits cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, such a claim shall be denied. 38 C.F.R. § § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. The Veteran filed the present claim for increase in June 2011 and underwent a VA examination to evaluate the severity of his allergic rhinitis that same month. Based on the results of that examination, the AOJ denied the claim. As was discussed above, at his December 2017 Board hearing, the Veteran alleged that his allergic rhinitis condition had worsened since his last VA examination. Accordingly, on remand in February 2018, the Board instructed the AOJ to schedule the Veteran for a new examination. The Veteran canceled his scheduled examination, citing his desire to withdraw his claim. Subsequent to the Board’s November 2019 remand, the Veteran once again canceled the examination scheduling process. Such examination was necessary to establish entitlement to any increase in benefits and the Veteran failed to report to the examinations without establishing good cause. The use of the word “shall” in 38 C.F.R. § 3.655(b) leaves no discretion in this matter. Because the Veteran failed to report for a VA examination that was necessary to establish entitlement to the increased benefit sought, and additionally failed to provide good cause, the claim for entitlement to an increased rating for allergic rhinitis must be denied. 38 C.F.R. § 3.655(b). 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran filed a claim of entitlement to service connection for PTSD. However, the record demonstrates that the Veteran has been diagnosed with both PTSD and major depressive disorder, as well as possible anxiety disorder. The Board has recharacterized the Veteran’s claim to encompass all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). VA treatment records demonstrate that in February 1996 the Veteran was referred to the psychiatric department after a dermatology appointment to address possible PTSD and anxiety. During that consultation, the Veteran stated that he had panic attacks and complained of chronic insomnia with nightmares. The Veteran also stated that he was “never in combat or in a bad situation, despite being in the Vietnam war,” and that the nightmares were not war related. The Board notes that the Veteran’s service records show his service included training at Fort Polk, Louisiana, and that the Veteran was stationed in Hawaii, but he did not serve in Vietnam. VA treatment records then show that the Veteran had a positive PTSD screening in June 2011. The Veteran underwent a VA examination in September 2011. At that time, the examiner diagnosed PTSD, major depressive disorder, and alcohol dependence in remission. Discussing his PTSD, the Veteran described three stressors: 1) witnessing his father’s death as a young child; 2) exposure to domestic and physical violence between family members as a child; and, 3) participation in training exercises at Fort Polk, where he claimed that his fellow soldiers seemed to forget that the exercises were not actually war. The VA examiner opined that the Veteran’s PTSD was caused by his childhood triggers and not his military experience. By way of rationale, the examiner explained that the training exercises at Fort Polk did not involve the type of fear for one’s life that would indicate a PTSD stressor. Indeed, during the examination, the Veteran stated that the exercise was quite stressful and frightening at times, but denied that he ever feared for his life. During testimony before the Board in December 2017, the Veteran attributed his PTSD to traumatic issues with his family during his childhood, to include abusive situations among his siblings and his father’s death. The Veteran described joining the military as “the best thing that ever happened” to him as it got him out of his family situation. The Veteran’s wife then clarified that the Veteran experienced memory problems and that the Veteran had told her about stressful training exercises at Fort Polk. According to the Veteran’s wife, the Veteran was assigned to play the role of the Vietcong during those exercises. The Veteran’s wife also testified that the Veteran had been a successful high school student prior to his military service, but that his life was significantly different after service. The Board acknowledges that, in July 2013 correspondence, the Veteran’s brother also attested to the fact that the Veteran returned from service angry, sad, and lonely, and turned to alcohol abuse. Based on the Veteran’s testimony, the Board deemed it necessary to afford the Veteran a new examination for PTSD and other acquired psychiatric disorders to clarify his diagnoses and to address the etiologies of those diagnosed disorders. In doing so, the Board acknowledged that it was possible that the Veteran’s psychiatric disorder or disorders had pre-existed service, in light of the Veteran’s assertions and the September 2011 examination. As was discussed above, the AOJ attempted to schedule the Veteran for a new examination on two occasions; each time, the Veteran canceled the examination scheduling process, essentially refusing to attend a new examination. Thus, the Board must proceed with the claim based on the evidence of record. 38 C.F.R. § 3.655(b) (“When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.”) Here, based on the record, the preponderance of evidence is against a finding that the Veteran’s diagnosed acquired psychiatric disorders were caused by or incurred in service. First, addressing the possibility that an acquired psychiatric disorder existed prior to service, a Veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To be "noted" within the meaning of the statute and regulation, the condition must be recorded in the entrance examination report. Id. Here, on the Veteran’s June 1968 entrance examination, the Veteran checked “Yes” to questions asking if he had ever had frequent trouble sleeping or depression or excessive worry. The examiner’s notes acknowledge situational anxiety, but the Veteran’s clinical evaluation identified the Veteran’s psychiatric status as normal. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was sound upon entry. Regarding PTSD, service connection requires a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence demonstrates that the Veteran’s PTSD is causally linked to the Veteran’s childhood experiences surrounding the death of his father and domestic abuse within his family. These stressors are demonstrably not linked to military service. To the extent that the Veteran has claimed that PTSD is causally related to his training at Fort Polk, there is no medical link between the Veteran’s current symptoms and the in-service stressor. Although the Board acknowledges the statements of the Veteran and his wife, there is no indication that either has mental health medical training. Therefore, neither the Veteran, nor his wife, is competent to provide such a medical opinion. The only medical opinion of record regarding a causal link between PTSD and training at Fort Polk is that of the September 2011 VA examiner. There, the examiner opined that the Fort Polk training was not a contributing stressor for PTSD and provided adequate rationale in support of that conclusion. Thus, the preponderance of the evidence is against a finding that the Veteran’s PTSD is related to military service. Regarding major depressive disorder and any other acquired psychiatric disorders, there is no evidence of an in-service onset. Indeed, service treatment records do not show any psychiatric treatment or complaints. Furthermore, the Veteran’s separation examination shows a normal psychiatric state. The Veteran has not identified an in-service injury or event that might be the cause of major depressive disorder or any other acquired psychiatric disorder, aside from PTSD. Moreover, to the extent that such causal relationship might be further explored and assessed by additional examination, the Veteran has canceled all such requests. Thus, the preponderance of evidence is against a finding of a relationship between the Veteran’s current disability and service. Accordingly, as the preponderance of the evidence is against a finding either that PTSD is causally related to an in-service stressor, or that any other acquired psychiatric disorder was caused by or incurred in service, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. 2. Entitlement to service connection for a deviated septum is remanded. As was discussed above, in its previous remands, the Board instructed the AOJ to obtain medical examinations and opinions to address the Veteran’s theories of contention regarding obstructive sleep apnea and a deviated septum. Despite the Veteran’s cancellation of those examinations, the Board finds that there are open medical questions that may potentially be answered based on a review of the available evidence of record, without an in-person examination. Thus, VA’s duty to assist requires that medical opinions be obtained, even in the absence of physical examination of the Veteran. The Veteran has made two primary contentions regarding both obstructive sleep apnea and a deviated septum. The first is that these conditions have been caused or aggravated by his service-connected allergic rhinitis. The second is that the conditions were caused by an in-service incident in which the Veteran was hit in the face with the butt of a rifle by a fellow servicemember. The Board notes that service treatment records do not document any such injury, however, the Veteran is competent to testify to events he experienced. Accordingly, on remand, medical opinions should be obtained regarding these contentions. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s obstructive sleep apnea. The examiner should review the entire claims file and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that obstructive sleep apnea had onset in, or is otherwise related to service. In doing so, the examiner should address the Veteran’s contention that he experienced difficulty breathing during service and that sleep apnea was caused by an incident in which he was hit in the face with the butt of a rifle. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by service-connected allergic rhinitis. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. If any of the questions above cannot be answered without an in-person examination of the Veteran, this should be made clear with an explanation as to why. 2. Obtain a medical opinion regarding the Veteran’s deviated septum. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran’s deviated septum had onset in, or is otherwise related to service. In doing so, the examiner should address the Veteran’s contention that he experienced difficulty breathing during service and that a deviated septum was caused by an incident in which he was hit in the face with the butt of a rifle. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by service-connected allergic rhinitis. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. If any of the questions above cannot be answered without an in-person examination of the Veteran, this should be made clear with an explanation as to why. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.