Citation Nr: 21026732 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-17 946 DATE: May 3, 2021 ORDER Entitlement to service connection for residuals of a laceration of left index finger, is denied. Entitlement to service connection for a low back disorder, to include degenerative disc disease and arthritis, is denied. Entitlement to service connection for a right leg disorder is denied. Entitlement to service connection for residuals of a venereal disease, to include genital warts and syphilis, is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Residuals of a laceration of the left index finger have not been demonstrated and are not due to injury or occurrence in service. 2. The preponderance of the evidence is against finding that the Veteran's low back disorder, to include degenerative disc disease and arthritis, began during active service, or is otherwise related to an in-service injury or disease. Any arthritis was not shown during service or within 1 year following separation from service 3. The competent medical evidence of record is against finding that the Veteran has a right leg disorder. 4. The Veteran has not been diagnosed with residuals of venereal disease, to include genital warts and syphilis, during the rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for the residuals of a laceration of the left index finger are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 2. The criteria for service connection for a low back disorder, to include degenerative disc disease and arthritis, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for a right leg disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 4. The criteria for entitlement to service connection for the residuals of venereal disease, to include genital warts and syphilis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from February 1972 to January 1980; and from June 1980 to June 1987. His awards and decorations include the Combat Action Ribbon. The Board previously remanded this case for additional development in May 2017 and in September 2020. The matter has now returned to the Board for appellate review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for residuals of left index finger laceration, In June 2016, the Regional Office (RO) granted service connection for residuals of left ring finger laceration, status-post repair of distal interphalangeal joint flexor tendon. Residuals of a little finger injury were also service connected. This was based on a review of service treatment records showing injury to the left ring and little fingers in service, with residuals found on a VA examination. Review of the service treatment records, and post-service treatment records, including the aforementioned examination do not reveal any residuals of a laceration to the right index finger. As such, the preponderance of the evidence is against a claim for service connection for these residuals and this claim is denied. 2. Entitlement to service connection for a low back disorder, to include arthritis The Veteran asserts service connection for a low back disorder, to include degenerative disc disease and arthritis. Specifically, the Veteran contends that his low back disorder is the result of his repetitive heavy lifting while in-service and from a motor vehicle accident he had during active service. Certain chronic diseases, including arthritis, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period of time is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Turning to the record, the Veteran's service treatment records reveal in May 1977 the Veteran was seen in service after a motor vehicle accident. At the time of the encounter, the examiner did not find that the Veteran sustained any traumas; however, the examiner concluded that the Veteran had a concussion as a result of the motor vehicle accident. Further service treatment records reveal that the Veteran was seen for complaints of low back pain. Specifically, an in-service treatment note from February 1983 indicates that the Veteran complained of back pain and physical examination revealed decreased forward movement. At the time of the encounter, the Veteran was diagnosed with mild muscle strain, he was prescribed medication, and he was advised of muscle exercises. However, at the time of separation examination in May 1987, the Veteran did not report, and the examiner did not note, any low back or spine disorders. Post service treatment records from the Florida Department of Corrections indicate that in February 1995 the Veteran complained of being unable to get up from bed and he reported that he hurt his back lifting a locker a few days earlier. The emergency department note from this encounter reveals that the impression was a possible back injury and to rule out severe muscle spasms. In January 2015, the Veteran was seen again for low back pain. Later diagnostic testing from May 2015 revealed diagnoses of degenerative disc disease and facet joint disease. In January 2016, the Veteran was seen again for low back pain and he reported that his back had gone out before in 1993 or 1994. Next, in February 2018, diagnostic tested showed modest osteoarthritis of the lumbar spine. In April 2016, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, the examiner rendered a diagnosis of degenerative arthritis of the spine. The Veteran reported that while on active duty he injured his lower back while performing repetitive heavy lifting and other required job duties. Further, the Veteran stated that his low back disorder had progressively worsened throughout the years. Diagnostic testing confirmed the presence of arthritis. The examiner opined that the Veteran's current diagnosis of degenerative disc disease of the lumbar spine was not caused by an in-service event. In support of this conclusion, the examiner explained that the Veteran's service treatment records reveal that he was treated for acute low back pain in 1983 while on active duty. Further, the examiner explained that this was likely an acute and transitory condition as there was no objective evidence of a chronic low back pain while on active duty. Additionally, there was no objective evidence the Veteran was medically treated for a low back disorder immediately post service. Moreover, the examiner noted that the Veteran was diagnosed with degenerative disc disease of the lumber spine in 2015 and this finding is common in the Veteran's age group. The Board has considered the evidence of record, as discussed above, and finds that the objective medical evidence does not show that the Veteran's low back disorder was caused his active duty, to include as being incurred after a motor vehicle accident when it was noted that he did not sustain any traumas. The Board further finds that the Veteran's arthritis of the back did not manifest to a compensable degree within one year of service and the presumption of service connection for a chronic disease, to include associated arthritis, is not available to the Veteran. Rather, the April 2016 VA medical opinion reflects that while the Veteran has a diagnosis of degenerative arthritis of the spine, the etiology is more likely related to the natural aging process and not to the Veteran's active service. The Board acknowledges that the Veteran himself claims that his low back disorder is due to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection and are afforded little probative value. Latham v. Brown, 7 Vet. App. 359, 365 (1995). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a low back disorder, to include degenerative disc disease and arthritis. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a right leg disorder The Veteran seeks service connection for a right leg disorder. He contends that his right leg disorder was incurred during a motor vehicle accident during his active military service. Turning to the record, the Veteran's service treatment records reveal that in May 1977 he was seen on an emergency basis after being involved in a car accident. The records from this encounter show that the Veteran had not sustained any trauma anywhere, but that he was diagnosed with a mild concussion. Next, in July 1986, the Veteran complained of right leg pain from his right knee and into lower leg for one day. He reported a history of similar problems with an unknown etiology. At the time of the examination, the Veteran reported that he had no recent history of injury, no history of thrombophlebitis, and there was no abnormality detected. The examiner noted that the Veteran was ambulatory with minimal difficulty with the assistance of a cane. Physical examination showed lower extremity symmetric without swelling, effusion, discoloration, deformity. Neuro vascular was found as intact and the extremity was non-tender to palpation. There were no palpable cords and a negative Homan's test was found. Ultimately, the examiner diagnosed the Veteran with probable musculoskeletal pain right lower extremity, which was treated with over the counter medication and the Veteran was instructed to avoid aggravating factors. Significantly, at the time of his May 1987 separation, clinical examination revealed the musculoskeletal system and lower extremities were found to be normal. Next, a musculoskeletal VA examination from April 2016 found that the Veteran did not exhibit any objective signs of a right leg disorder. Moreover, physical examination revealed normal sensory and motor findings with no objective evidence of radiculopathy. Post service records from the Florida Department of Corrections are silent as to any complaint or treatment for a right leg disorder. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report his symptoms of pain in his right leg. However, an underlying disability related to his right leg pain has never been identified during the current appeal period. There is no other competent medical evidence of record, VA or private, of a right leg disorder during the applicable appeal period. In essence, the evidence of a current diagnosis of a right leg disorder is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to a right leg disorder requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a right leg disorder. 38 C.F.R. § 3.159 (a)(1), (2). The Board has considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. However, there is no indication that any pain from the Veteran's right leg disorder, has had any functional impairment of earning capacity for the Veteran. In light of the absence of any competent evidence of any right leg disorder, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. 4. Entitlement to service connection for residuals of a venereal, to include genital warts and syphilis The Veteran filed his claim on this issue in December 2008. However, the Board notes that the Veteran does not appear to assert that he presently has a venereal disease or any residuals thereof, but rather that he previously had such a disease during his active duty service. Specifically, the Veteran related that he contracted gonorrhea and syphilis during his active military service. Turning to the records, the Veteran's service treatment records indicate that in April 1979 the Veteran tested positive for gonorrhea and he was treated with medication. Also, between February and March 1982, the Veteran complained of and was treated for genital warts. In September 1985, the Veteran was again treated for genital warts. Additionally, in June 1986, the Veteran was treated for syphilis. At the time of the separation examination in May 1987, the examiner noted that the Veteran had a history of a positive syphilis test that was treated in July 1985. However, the separation examination did not report any additional notes for any other venereal disease, to include genital warts. In April 2016, the Veteran was afforded a VA examination in connection with his claim. The examiner reported that the Veteran was diagnosed with genital warts during his active military service. The Veteran reported that while he was on active duty he was diagnosed and treated for genital warts. He further reported that he experiences episodic red raised itchy bumps on the shaft of his penis. However, he is currently asymptomatic. At the time of the examination, the Veteran did not have any visible symptoms of a skin condition, nor had the Veteran been treated with oral or topical medications in the past 12 months for any skin condition. The examiner found that there was no objective evidence of genital warts at the time of the examination. The examiner opined that it was less likely than not that the Veteran had a current diagnosis of a venereal disease that was incurred in or caused by his military service. In support of this conclusion, the examiner explained that although the Veteran was diagnosed and treated for genital warts while on active duty, there was no objective evidence that the Veteran was diagnosed with or treated for genital warts post service, to include the April 2016 VA examination. The Board finds that there is no evidence to show that the Veteran currently has residuals of a venereal disease, to include genital warts and syphilis. Absent evidence of a current disability, these claims for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. at 223. Accordingly, service connection for a venereal disease, to include genital warts and syphilis. In essence, the evidence of a current diagnosis of a venereal disease, to include genital warts and syphilis, is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability related to a venereal disease requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in service and thereafter, his reports are not competent evidence of a diagnosis of a venereal disease. 38 C.F.R. § 3.159 (a)(1), (2). In light of the absence of any competent evidence of any residuals of a venereal disease, to include genital warts and syphilis, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for posttraumatic stress disorder (PTSD) is The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2019). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2019). The United States Court of Appeals for Veterans Claims (Court) has specifically addressed VA's duty to assist incarcerated Veterans in cases where a VA examination is warranted. The Court has cautioned "those who adjudicate claims of incarcerated Veteran's to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow Veteran's." See Bolton v. Brown, 8 Vet. App. 185 (1995) (citing Wood v. Derwinski, 1 Vet. App. 190 (1991)). In Bolton, the Court remanded a case where the RO claimed an inability to get a fee-basis physician to conduct an examination at a correctional facility. In that case, further efforts were deemed necessary to attempt to examine that Veteran. In the case of VA medical examinations, VA does not have the authority to require a correctional institution to release a Veteran so that VA can provide him the necessary examination at the closest VA medical facility. See 38 U.S.C. § 5711 (2012). However, VA's duty to assist an incarcerated Veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton, 8 Vet. App. at 191. In this case, the Veteran has been incarcerated in Florida since June1988 and is not currently eligible for parole. The Veteran contends that he incurred PTSD, due to stressor events experienced during active duty service in the Republic of Vietnam. In particular, in his May 2010 Notice of Disagreement in the Veteran specifically amended his initial claim from a mental disorder to PTSD and went on to describe having constant nightmares that prevented him from sleeping and that the Veteran had flashbacks of his combat service. Further in the Veteran's June 2011 VA Form 9, the Veteran re-stated that his claim was for PTSD and not for an acquired psychiatric disorder. Therefore, to afford the Veteran the broadest possible scope for his claim, the issue has been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). However, in April 2016, the Veteran was afforded a VA examination for Mental Disorders Other than PTSD. At the time of the examination, the examiner found that the Veteran had a diagnosis of substance use disorder in a remission in a controlled environment. Ultimately, the examiner determined that there was no evidence to support a mental disorder diagnosis. Once VA provides an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination is inadequate if the examiner does not consider the lay evidence. Miller v. Wilkie, 32 Vet. App. 249 (2020). The Board finds that the April 2016 VA examination is inadequate for purposes of determining service connection because the examination did not develop the Veteran's contention that he has PTSD. Rather, the examination focused solely on psychiatric disorders other than PTSD. Given this deficiency, another VA examination is required with respect to the Veteran's service connection claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Accordingly, a remand is warranted to obtain a new VA examination to determine whether the Veteran has PTSD, and if so, the nature and etiology of PTSD. The matters are REMANDED for the following action: 1. The RO should take all reasonable measures to schedule the Veteran for a VA PTSD examination to determine whether he has the disorder, and if so, the nature and etiology of any PTSD. The RO should confer with the prison authorities to determine whether the Veteran may be escorted to a VA medical facility for examination. If that is not possible, the Veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. The RO should determine which option is the most feasible and document all attempts taken under Bolton to schedule the Veteran for a VA examination related to his claims, if deemed possible. 2. Forward the claims folder to a VA psychiatrist or psychologist for an examination of the Veteran, to determine whether PTSD is found, and if so, the nature and etiology of the PTSD. The claims file must be made available to the examiner, who must acknowledge receipt and review of these materials in any report generated. The examiner must review all medical evidence associated with the claims file. All indicated tests and studies must be performed. Upon examination, if conducted, the examiner must take a complete history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and state the stressor(s) that form the basis of the diagnosis. The examiner should discuss the Veteran's reported symptoms of recurrent nightmares and flashbacks. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, Associate 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.