Citation Nr: 21028035 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-27 989 DATE: May 10, 2021 ORDER Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's right shoulder disorder did not manifest in service and arthritis of the right shoulder did not manifest within one year of separation. The disability is not otherwise related to service. 2. The Veteran's neck disorder did not manifest in service and arthritis of the cervical spine did not manifest within one year of separation. The disability is not otherwise related to service and is unrelated (caused or aggravated) to service-connected disease or injury. 3. The Veteran's right ankle disorder did not manifest in service and arthritis of the right ankle did not manifest within one year of separation. The disability is not otherwise related to service. 4. PTSD is not attributable to credible supporting evidence of a stressor. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for neck disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.310. 3. The criteria for service connection for right ankle disorder are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for PTSD are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corp from April 1974 to April 1976. His DD 214 reflects his military occupational specialty was rifleman, and he had over a year of foreign or sea service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded to the RO twice, most recently in August 2020. It has been returned to the Board. The Veteran's service medical records (STRs) have been deemed unavailable after a thorough search. Only his service entrance examination, dated in April 1974, is available. VA requested he provide any records or information he had in his possession. The Board is mindful of the heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The service personnel records show he served at Marine Barracks in Guam from July 23, 1975 to August 28, 1975. Service Connection The Veteran contends that he injured his shoulder, neck and ankle in a rappelling incident in service. Alternatively, he contends that his neck condition is secondary to a right ankle condition. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). In general, to establish a right to compensation for a present disability, a 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases such as arthritis will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for a right shoulder disorder is denied. 2. Entitlement to service connection for a neck disorder is denied. 3. Entitlement to service connection for a right ankle disorder is denied. For the reasons that follow, the preponderance of the evidence is against these three claims. The question for the Board is whether the Veteran has current right shoulder, right ankle or neck disorders that manifested in service or arthritis in these areas that manifested within the applicable presumptive period, or whether any such disability is otherwise related to service. First, as to whether the neck disorder is proximately due to or aggravated by a service-connected right ankle disability, since service connection is being denied for right ankle disability, service connection as secondary to a right ankle disability is not for consideration. Next, we note that there is current disability as to each of these claims as demonstrated in January 2020 VA disability benefits questionnaire (DBQs) specific to each disorder. However, the VA examiners found that these disorders all first manifested many years following service separation and were not present in service. Glenohumeral joint osteoarthritis of the right shoulder and degenerative arthritis of the right ankle date from 2010, and degenerative arthritis of the cervical spine dates from 2010. The Board concludes that, while the Veteran has arthritis of the right shoulder, right ankle and cervical spine (neck) as outlined above, which constitute chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), they did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. Rather, 2010 and 2011 non-VA treatment notes reflect right shoulder arthroscopy and injections, and cervical disc disease and right ankle arthritis from 2010. Other than that, there were no related complaints for the right shoulder or ankle, or cervical spine, for years following service. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Post-service treatment records show, consistent with the VA examiner's findings in January 2020, these disorders were first noted years following the Veteran's separation from active service in 1976 and outside the applicable presumptive period. While the Veteran is competent to report having experienced certain symptoms, his assertions are considered not credible to the extent that he urges he had symptoms since service or during service or the presumptive period due to the gap in time between service separation in 1976 and the first documentation of signs and symptoms decades later. His treatment records reflect that these conditions were not reported prior to that time. The Board accords substantial probative weight to the competent medical evidence, the treatment record and the January 2020 VA medical opinions by the VA physician, which together strongly support that the current disabilities first manifested years after service, and not during service or during a presumptive period. The Veteran's assertions are outweighed by this evidence. The preponderance of the evidence is also against finding that a nexus exists between the Veteran's right shoulder or right ankle disability, or the neck disability, and service. 38 U.S.C. § 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the Board again notes that these disorders began years after service and have not been related to service by any competent evidence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The well-supported opinion of the January 2020 VA examiner that all of these disorders are less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness is highly probative. The examiner provided a rationale that was sound and fully considered the evidence of record. The as to the right shoulder rationale was as follows: The Veteran served in the US Marine Corp 4/1974-4/1976. He reports having been involved in a rapelling tower incident in 1975 and reports injury to his neck, right shoulder, and right ankle related to that incident. Medical records presently available for review by this examiner do not include any service treatment records regarding the above described 1975 incident and/or care/evaluation of any neck condition in service and/or within one year of service. Also, this examiner is unable to locate any information in-file indicating the claimed 1975 rapelling training injuries resulted in duty status changes and/or had any impact on the remainder of his active duty military service. The Veteran now has diagnoses of right shoulder degenerative arthritis and has had two or more right shoulder surgeries, the earliest of which is understood to have been approximately at least 22 years after service separation, and the bulk of the medical records regarding the right shoulder appear to begin in the 2010-2012 time-frame (some approximately 35 years after service separation), based upon medical records presently available for review. There is insufficient evidence in-file to establish that it is as least as likely as not that the Veteran's claimed right shoulder condition(s) had its onset in service, was aggravated in service or is otherwise related to any incident in service. Accordingly, this examiner opines that based on the history as provided by the Veteran, review of presently available medical records, and 12/12/2019 examination of the Veteran, it is less likely than not that the claimed right shoulder condition(s) had its onset in service, was aggravated in service or is otherwise related to any incident in service. This examiner further opines that based on the history as provided by the Veteran, review of presently available medical records, and 12/12/2019 examination of the Veteran, it is more likely than not that the claimed right shoulder condition(s) are due to the natural process of aging. As to the cervical spine, the rationale was largely the same, with the exception that the examiner stated the Veteran now has diagnoses of cervical spine DD, degenerative arthritis, and bilateral upper extremity cervical radiculopathy, which appear to have been diagnosed in the 2010-2012 time-frame (some approximately 35 years after service separation). As to the right ankle, the rationale was largely the same, with the exception that the examiner stated that the Veteran now has diagnoses of right ankle degenerative arthritis, and the bulk of the medical records regarding the right ankle appear to begin in the 2010-2012 time-frame (some approximately 35 years after service separation). While the Veteran believes these disorders are related to an in-service injury, event, or disease, his lay opinion as to a nexus is outweighed by well-supported opposite opinions of the VA physician that are indeed consistent with the documented record. Consequently, the Board gives more probative weight to the competent medical evidence, the VA exams and the treatment record, which shows that the disorders first manifested years after service and are unrelated to service. There is no competent evidence that any of them are otherwise related to service. The weight of the evidence is against concluding that any such disease was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence weighs against finding that any such disorder occurred in or is otherwise related to service. 4. PTSD The Veteran seeks service connection for PTSD, asserting that it was caused by stressors of witnessing fellow marines rape and feed fire starters to Vietnamese refugee children they were guarding in Guam in 1975. He also reports that a close friend and comrade committed suicide in Hawaii. Furthermore, he reported a riot while in Guam. None of these stressors have been objectively verified by credible supporting evidence, and VA has deemed the information insufficient to allow for a meaningful search for stressor verification. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); 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. It is uncontroverted that the Veteran served in Guam in July and August 1975. It is also uncontroverted that he was diagnosed with PTSD at least as likely due to the stressor of witnessing rape of a refugee during a December 2019 VA PTSD DBQ by a VA psychologist who reviewed the record and examined the Veteran. We also note that this examiner explained that the PTSD diagnosis replaces/subsumes any past diagnoses of anxiety and/or adjustment disorder with depressed mood. PTSD is the only diagnosis. Veteran's stressor is deemed not related to combat and the record does not show he participated in combat. There are other exceptions in regard to stressor verification. Here PTSD was not diagnosed during service. He was not a prisoner of war. The actions described by him do not involve feat of hostile military or terrorist activity. In fact, he was in Guam and he has asserted that the incident involved service personnel of the United States. The events do not involve personal assault on him. Thus, the law requires verification (credible supporting evidence) of the claimed stressor. That is what the Board must determine. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). For the following reasons, service connection for PTSD is not warranted. The Veteran has described the circumstances of the assault and particularly the incident of a young female Vietnamese person being raped by three marine guards. He has expressed his guilt at not intervening. He has reported being haunted by this experience and his inaction. Service personnel records show he was in Guam as noted above. A brief review of information readily available on the internet indicates that Vietnamese refugees were evacuated to Guam during that time period. However, there is no actual documentation of the incidents, and the Veteran was unable to provide names, dates and exact times. Current treatment records include VA treatment for PTSD in which the Veteran reports in August 2017 that he had difficulty remembering his trauma account of Guam until he began writing it down as recommended by his VA treating psychologist. He reported that the memories came back more clearly at that point. He described the rape and abuse of the children in detail and he tearfully stated he wished he had done more to stop the assaults. The psychologist in 2017 indicated this was PTSD delayed onset. We note that he spoke in vague terms of his trauma in Guam in his March 2011 claim. In the December 2019 VA PTSD examination, the examiner opined that the Veteran currently met the DSM-V criteria for PTSD. The examiner found the Veteran's stressor of the young Vietnamese person being raped adequate to support the diagnosis of PTSD. A VA social worker completed a PTSD DBQ in September 2020 and opined that PTSD stems from witnessing the rape by soldiers and inability to help. The Veteran has written detailed statements to VA explaining what he witnessed in Guam. He emphasized that it was his experiences with the mistreatment of the refugee youth that he believes constitute a stressor. Here, we are presented with a diagnosis of PTSD. However, there is no credible supporting evidence of the reported stressor. In addition, his reports do not come within any of the exceptions regarding the evidence needed to establish a stressor. The requirements of the regulations are controlling. In the absence of credible supporting evidence of the stressor or some exception to such requirement, service connection for PTSD may not be granted. There is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL 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.