Citation Nr: 21025315 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-54 307 DATE: April 27, 2021 ORDER Entitlement to service connection for a right foot disability is granted. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a left knee disability, also claimed as a left lower extremity disability, is denied. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), anxiety, and depression, is denied. REMANDED 5. Entitlement to service connection for a skin disability is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows that it is at least as likely as not that the Veteran’s current right foot disability is related to a July 1998 foot injury that occurred in the line of duty during a period of ACDUTRA or INACDUTRA. 2. The probative evidence of record does not show that the Veteran has a current right ankle disability that was at least as likely as not incurred in or caused by service. 3. The probative evidence of record does not show that the Veteran has a current left knee or leg disability that was at least as likely as not incurred in or caused by service. 4. The probative evidence of record does not show that the Veteran’s current mental health disabilities are at least as likely as not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability, also claimed as a left leg disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression are not met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from May 1968 to April 1970. The Veteran also had Reserve and National Guard service. The Board notes that the issues on appeal were denied in an April 2010 rating decision. The Veteran did not file a timely notice of disagreement (NOD) with that decision. Nonetheless, a June 2011 development letter informed the Veteran that VA continued to work on his claims. An April 2012 rating decision again denied the claims, after which the Veteran filed a timely NOD and subsequently perfected his appeal. The Veteran testified before the undersigned at a March 2017 video-conference hearing; a transcript is associated with the claims file. The matters were remanded for additional development in December 2018, and that decision continued to treat the issues as before the Board on the merits, without regard to whether the April 2010 decision had become final. As VA has repeatedly treated the April 2010 decision as on appeal, the Board finds that the April 2010 rating decision did not become final and new and material evidence is not necessary prior to adjudication on the merits. Thus, the Board may proceed with appellate consideration. Service Connection 1. Entitlement to service connection for a right foot disability is granted. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (2), (24); 38 C.F.R. § 3.6 (a). ACDUTRA includes full time duty performed by members of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6 (d). When a claim for service connection is based upon a disease or injury that occurred during a period of ACDUTRA or injury that occurred during a period of INACDTURA, presumptive periods and the presumption of sound condition on entrance to service do not apply, regardless of whether the individual had a prior period of active service. Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran reported right foot pain in service in November 1968 for several days, and an x-ray was negative. The Veteran also reported a right foot injury that occurred in while training in Michigan in July 1998 while on either ACDUTRA or INACDUTRA service. The record contains a medical treatment record from July 13, 1998 for an injured right foot. The Veteran reported the injury occurred after the Veteran has just started running after warming up, and the record states that the Veteran reported to the “TMC”, which the Board presumes to be the Troop Medical Center. The Veteran’s address is also listed as on a base in Lima, Ohio. The Veteran was diagnosed with plantar fascitis. Medical treatment records from January 2010 also show a diagnosis of bilateral plantar fasciitis. A March 2010 VA examination found a current diagnosis of chronic foot strain, and x-rays showed a calcaneal spur. The examiner noted the reported July 1998 injury. The examiner opined that it is at least as likely as not that the Veteran’s current right foot condition was related to the military, based on the documentation of the July 1998 injury. The record shows that the Veteran served in the Army National Guard from May 1996 to November 1999. Military personnel records do not provide specific dates of ACDUTRA or INACDUTRA for this period. However, the record supports a finding that the Veteran was still attending trainings during this period. A retirement points history statement indicates that the Veteran accumulated 41 inactive duty for training points and 15 active duty points for the period between May 1998 and May 1999. Given the Veteran’s testimony surrounding the July 1998 injury and the corresponding medical documentation suggesting the Veteran was at a training, the Board finds that, giving the benefit of the doubt to the Veteran, the right foot injury occurred during a period of ACDUTRA or INACDUTRA and in the line of duty. The Board finds that the preponderance of evidence is in favor of a finding that the Veteran’s current right foot disability is due to his in-service injury. The March 2010 VA examiner examined the Veteran and considered his in-service injury. The examiner found that the Veteran’s current condition was related to the July 1998 injury based solely on the documentation of the July 1998 injury. While this rationale is sparse, the Board finds it sufficient in this case to warrant service connection. There is nothing in the record to impugn the Veteran’s credibility with regard to his injury, but for his recollection that the injury occurred in Michigan, when it appears to have occurred in Ohio. As such, entitlement to service connection for a right foot disability is granted. 2. Entitlement to service connection for a right ankle disability is denied. The Veteran contends that he has a right ankle disability that is related to service. The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). Furthermore, pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Veteran contends that he currently has a right ankle disability that is due to an injury in service. The Veteran contends that he fell off the back of a truck while in Germany. The medical evidence of record does not show a diagnosis of a right ankle disability. The Veteran states that his ankle gives out now and then, and testified that he had a diagnosis of ankle sprains from the Cleveland Clinic. However, despite reasonable efforts to obtain those medical records by VA, those records are unavailable, and not of record. Nonetheless, the Veteran is competent to attest to ankle pain, which constitutes signs of a possible current disability. The Board notes that the Veteran is not medically competent to diagnose a current ankle disability or link it to a particular etiology. With regard to whether the current symptoms can be linked to service, the Veteran did present with right ankle pain in December 1968, according to service treatment records. However, there are no further complaints of right ankle pain found in medical records since that time. Subsequent military physical examinations, including separation examinations, are absent complaints of a right ankle issue. The Board notes that the Veteran has not been provided a VA examination with regard to this alleged disability. However, as the medical evidence of record is absent any complaints related to a right ankle disability since December 1968, the record is not sufficient to indicate that the Veteran’s current complaints are related to service. As such, a VA examination is not necessary. Further, as the record does not establish the presence of a current right ankle disability, the matter must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a left knee disability, also claimed as a left lower extremity disability, is denied. The Veteran claims that he injured his left knee in August 2002 during a period of ACDUTRA or INACDUTRA. With regard to whether the Veteran has a current disability, he testified that he has pain in his right knee, which he is competent to attest to. Medical records from December 2009 show the Veteran complaining of bilateral leg pain since the 1960’s. The record does not contain a diagnosis of a left knee or left leg disability, but the Veteran’s contentions do constitute competent evidence of symptoms of a disability. The Veteran has not been afforded a VA examination to determine whether his current symptoms of a disability are related to service, as the evidence does not establish that an event or injury occurred in service. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Medical treatment records from August 2002 show a left knee contusion that occurred on August 1, 2002. The medical evidence of record does not contain any evidence of left knee treatment after that date. Further, military personnel records do not establish that the Veteran was on a period of ACDUTRA or INACDUTRA on August 1, 2002, and there is no evidence to indicate that the injury occurred in the line of duty. The Board acknowledges the Veteran’s contention that his knee injury occurred on during a period of ACDUTRA or INACDUTRA. However, the Board has taken all necessary steps to obtain all military personnel records, and they not contain retirement points statements or other documentation showing periods of ACDUTRA or INACDUTRA for the year 2002, nor do medical treatment records of the August 2002 injury suggest that it happened on such a period. The Board finds the Veteran’s contentions with regard to his injury less credible, as they are not supported by the military personnel records and medical treatment records. As there is insufficient evidence of an in-service event, no VA examination is necessary. The most probative evidence of record does not show that the Veteran has a current left knee disability that is at least as likely as not incurred in or caused by service. Entitlement to service connection for a left knee disability is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, anxiety, and depression, is denied. The Veteran contends that he has a current mental illness or PTSD that is related to his time in service. He specifically contends that he was stationed in Germany near the Czech border and there was an uprising during a training exercise. He states that there were tanks and paratroopers involved. He also asserts that he was denied multiple promotions for no reason. He also asserts that he was given a fabricated negative performance review. He also testified that his reduction in rank caused him great stress. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. The record does not contain a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a). The record also contains a September 2011 Formal Finding of a lack of information required to corroborate the Veteran’s stressors. The record does, however, contain diagnoses of generalized anxiety disorder and depression. As such, the Veteran meets the first element of Shedden, the presence of a current disability. With regard to whether an in-service event caused his disability, service treatment records do not show complaints related to mental health. The medical evidence of record does not show evidence of mental health complaints until 2009, many years after service. Upon his intake for mental health treatment, the provider noted that the Veteran feels he has depression and/or PTSD that is related to his military experiences, however, “his behavior is contradictory to his belief.” The provider noted that he has been able to function as a civilian and attained various relationships and occupations. Subsequent treatment sessions for mental health describe the Veteran’s complaints from service to involve conflicts regarding race. He is described as ruminating over past issues in the military, and the provider noted the Veteran was reduced in rank after a conflict with a supervisor. The Veteran was not provided a VA examination to evaluate his current mental health disabilities. With regard to the requirements of McLendon, the record technically shows that an event occurred in service, to which the Veteran attributes his mental health disabilities. The Veteran was reduced in rank, and clearly was in some conflict with supervisors. However, with regard to the requirement of McLendon that the record indicate that the disability may be associated with the Veteran's service or with another service-connected disability; but insufficient competent medical evidence on file for VA to make a decision on the claim, the Board finds that the low bar for such indication is not met. The Board acknowledges that the unmet requirement of McLendon is a low threshold. However, the record indicates that the Veteran’s disabilities are likely not due to service. Indeed, the Veteran’s treating mental health provider stated that his behavior was contradictory to the belief that military service caused his depression and anxiety disorder. As such, VA examination is not necessary. The Board acknowledges the Veteran and lay witness statements that the Veteran’s behavior changed after military service, but more probative weight is given to the statement of the medical professional who evaluated the Veteran in 2009, suggesting his disabilities are not service-related. The Board further notes that the Veteran and other lay witness do not possess the medical expertise necessary to attribute his mental health disabilities to a specific etiology. Given, the above, a VA examination is not warranted under McLendon. Further, the Board finds that the probative evidence of record does not show that the Veteran’s current mental health disabilities are at least as likely as not incurred in or caused by service. As such, the benefit of the doubt doctrine is not for application, and service connection is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 5. Entitlement to service connection for a skin disability is remanded. The Veteran contends that he has a current skin disability that is related to complaints of poison ivy exposure and a scalp rash that was treated during a period on ADCUTRA in 1984. The record does not contain a competent medical opinion addressing whether the Veteran has a current skin disability that is etiologically related to service. The Board notes that VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; and (3) 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; but insufficient competent medical evidence on file for VA to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Veteran testified that he gets sores and bumps on his skin at his 2018 Board hearing. The Veteran’s wife also stated that the Veteran has current skin problems, and the Veteran reported having many scars from poison ivy in service at a January 2017 mental health evaluation. The most recent skin-related medical diagnosis found in the record is for chronic folliculitis of the scalp in 1998 and 1999. The Board notes that the Veteran, while not considered medically competent to attribute a skin disability to a specific etiology, is competent to attest that he currently has bumps or sores on his skin. As such, the Board finds the Veteran’s contentions to be competent evidence of symptoms of a current disability, especially in light of the circumstances of his service and past treatment. With regard to whether the disease occurred in service, the record shows that the Veteran had a period of ACDUTRA from July 7, 1984 to July 22, 1984. The Veteran was seen on July 10, 1984 for a severe rash of the scalp. A medical note stated that he shouldn’t wear his helmet more than 4 hrs at a time. The Veteran complained of the rash for several days. The medical note indicates that he had treatment from a civilian doctor for the condition, and the weight of the helmet on the head aggravated the severe follicular dermatitis. Medical records from 1998 and 1999 show a continued diagnosis of chronic folliculitis of the scalp. Service treatment records from active duty also show that the Veteran complained of scaling of the skin in May 1969. The evidence above is sufficient to establish that the disease was present during service. The Board further finds that the evidence is sufficient to indicate that the current symptoms of the Veteran’s skin disability may be associated with service. The Board notes that the July 1984 record showing that the scalp rash was being treated by a private doctor suggests that it did not have its onset during a period of ACDUTRA, but it may have been aggravated by line of duty activities such as wearing a helmet, as suggested by the medical record. As there is no competent medical opinion of record, remand is necessary to determine whether the Veteran has a current skin disability that is at least as likely as not incurred in or caused by service, to include his complaints of scaling skin in 1969 and reports of poison ivy scars, as well as whether the Veteran’s chronic scalp condition was aggravated by his ACDUTRA service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed skin disability. The examiner must review the entire record and consider the Veteran's lay statements. The examiner is asked to determine: a) Whether the Veteran has a current skin disability, including whether any skin disability existed during the pendency of the appeal. Such disabilities include episodic conditions that may not be present on examination. b) Whether it is at least as likely as not (50 percent or greater probability) that any current skin disability was incurred in or caused by service. The examiner must address the Veteran’s complaints from 1969 and 1984. c) Whether it is at least as likely as not (50 percent or greater probability) that any current skin disability was aggravated by service. The examiner must address the medical record from 1984 indicating that wearing a helmet aggravated the Veteran’s scalp condition. A complete rationale must accompany any conclusion reached. 2. After completion of the above, review the expanded record, including any evidence entered since the most recent supplemental statement of the case, and determine whether the benefit sought may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.