Citation Nr: 21030254 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-41 675 DATE: May 18, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran's claimed in-service stressors have not been corroborated. 2. The Veteran does not have a diagnosed acquired psychiatric disability, to include PTSD. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1982 until his honorable discharge in June 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 decision by the Des Moines, Iowa, Department of Veterans Affairs (VA) Regional Office, which denied service connection for PTSD and a left shoulder condition. The Veteran is proceeding unrepresented. The Veteran filed a timely VA Form 9, substantive appeal to the Board, and requested a videoconference hearing before the Board. The Board notified the Veteran that a videoconference hearing was scheduled with a Veterans Law Judge (VLJ) on October 2, 2018, at the Veteran's local VA Regional Office. See September 2018 VA Correspondence. The Veteran did not appear for that hearing and, to date, has not requested that the hearing be rescheduled. There is no indication that the Veteran did not receive the notice of hearing or that the Veteran was otherwise unable to attend for a good-cause reason. The September 2018 VA letter informed the Veteran that if he did not report for his scheduled videoconference hearing, then the Board would consider his hearing request withdrawn. Thus, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board notes that in December 2020, the Board mistakenly sent the Veteran a letter informing him that a videoconference hearing was again scheduled on his pending appeal for March 11, 2021. The letter explained that the Veteran could choose to have a tele-hearing rather than traveling to his local VA Regional Office for a videoconference hearing. Nonetheless, a videoconference hearing was scheduled for March 11, 2021, with a VLJ. The Veteran did not appear for that hearing and, to date, has not requested that the hearing be rescheduled. There is no indication that the Veteran did not receive the notice of hearing or that the Veteran was otherwise unable to attend for a good-cause reason. Thus, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board will decide the case on the evidence of record. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service connection for an acquired psychiatric disability, to include PTSD VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Service connection for PTSD is specifically governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the DSM-5, 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor. In December 2013, the Veteran filed two separate VA Forms 21-0781, statement in support of claim for service connection for PTSD, identifying two in-service stressors. First, he stated that while stationed "somewhere in Germany" in December 1984 with his military unit, he was a driver following an army vehicle driven by his sergeant. He witnessed his sergeant's vehicle flip over and kill his sergeant. Second, while stationed at Hunter Army Airfield, Savanna, Georgia, in April or May of 1983, he witnessed Rangers conducting low-altitude jumps. He witnessed on Ranger fall to the ground because his parachute did not open correctly. He went to the Ranger and found his neck broken, but the Ranger was still alive. The Ranger was taken away, and the Veteran did not know what happened to him after that point. In March 2014, the RO sent the Veteran correspondence informing him that more information about his PTSD in-service stressors was necessary. The RO requested the Veteran provide information about any combat-related incidents, provide a new completed VA Form 21-0781 for such incidents, identify any treatment he received for PTSD, provide names of the injured persons and causalities, and provide any evidence that he engaged in combat. The RO informed the Veteran that the information was necessary to conduct verification of his stressors through the Joint Services Records Research Center (JSRRC). The Veteran did not provide any additional information. The JSRRC Coordinator issued a Formal Finding in a June 2014 VA Memorandum, stating that due to the lack of information provided by the Veteran the Coordinator was unable to verify his in-service stressors. The Coordinator cited the steps taken to obtain the necessary information and determined that all procedures to obtain the necessary information from the Veteran were properly followed. The Coordinator stated, We have determined that the information required to corroborate the stressful event described by the veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of National Archives and Records Administration (NARA) records because the veteran did not provide a response to requests for stressor details. Following the Veteran's notice of disagreement, the VA Regional Office sent him an August 2015 correspondence informing him that more information was still necessary to verify his in-service stressors. The VA Regional Office requested his sergeant's name and unit, the approximate date and location of the incident while in Germany. The RO informed him he could submit statements from individuals having knowledge of his claimed condition. The Veteran did not submit additional evidence. The RO issued a statement of the case in October 2015 and supplemental statement of the case in October 2016 adjudicating the Veteran's claim for service connection for PTSD with respect to both of his asserted in-service stressors. The VA Regional Office found the lack of available evidence to verify his noncombat-related stressors prevented service connection. The Board agrees with the VA Regional Office. Based on the evidence of record, the Board must find that service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. As documented above, despite various attempts, the Veteran's in-service stressors have not been corroborated. Furthermore, the Veteran's in-service treatment records and post-service clinical records are silent with respect to any findings of another acquired psychiatric disorder. In fact, in a December 2014 VA mental health consult, the clinician documented that the Veteran believed he did not have any mental health issues. The clinician, following an examination, ruled out diagnoses of PTSD and anxiety. Absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has considered the inferences from the Veteran's claim that he believes he has PTSD. But the Board finds that the Veteran, as a lay person, is not competent to render an etiological opinion without demonstrating he has the necessary education, skill, and training to do so. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). In this regard, the question of etiology (and diagnosis) of a mental disorder involves a medical subject concerning an internal psychological process extending beyond an immediately observable cause-and-effect relationship. As such, the question of whether the Veteran has PTSD and its etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is non-probative evidence. Id. Based on the above analysis, the Board finds that service connection is not warranted for an acquired psychiatric disorder, to include PTSD. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although an examination nor medical opinion was obtained in this case, the Board finds that VA was not under an obligation to provide one. Section 5103A of Title 38 of the United States Code, captioned "DUTY TO ASSIST," mandates that a medical examination be provided in disability compensation claim cases only when: (1) There is competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (2) There is evidence establishing that an event, injury, or illness occurred in service or within an applicable presumptive period, or the Veteran has a service-connected disability; and (3) There is 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 (4) There is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Each of the elements must be met. The first element requires only (1) an assessment of whether there is evidence of a current disability or persistent or recurrent symptoms thereof and (2) an assessment that such evidence is competent. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2)(A). The Board finds there is not competent evidence of an acquired psychiatric disability or possible associated symptoms. The Veteran has not provided any evidence that he suffers symptoms associated with a psychiatric disability, other than to say he believes he might have PTSD. Nor do his medical records reasonably suggest current psychiatric disabilities or associated symptoms. See Fagan v. Shinseki, 573 F.3d 1282, 1286 (2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in [38 U.S.C. §] 5107(b) is not applicable based on pure speculation or remote possibility). Therefore, a VA medical examination is not warranted. REASONS FOR REMAND Service connection for left shoulder disability is remanded. The Veteran asserted that while stationed in Germany, he was involved in a jeep accident in December 1984. His jeep ended up in a ditch. His left shoulder and the small of his back were slammed against a tree during the accident. June 2015 Notice of Disagreement. Although his in-service medical records are silent for treatment for this injury, his VA medical records indicate that he sought treatment in 2005 and thereafter for worsening shoulder pain accompanied by functional loss. He reported to VA medical professionals that he has experienced shoulder pain since the jeep accident in 1984. See April 2014 VA Primary Care Outpatient Note. Based on the evidence described above, the Board finds (1) there is competent evidence of a current left shoulder disability; (2) sufficient evidence of an in-service event, that being a jeep accident; (3) indication that the Veteran's chronic and worsening left shoulder pain may be related to his in-service jeep accident; and (4) there is insufficient medical evidence of record on which to decide the claim as no VA examination has been offered to the Veteran and no other medical evidence addresses the etiology of the Veteran's left shoulder disability. Therefore, remand for a VA examination and opinion is necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. 79. Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a VA examination from an appropriately qualified clinician who is asked to provide an opinion addressing the onset and etiology of the Veteran's left shoulder disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify any left shoulder disability that Veteran currently has. (b.) For each identified left shoulder disability, please opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's left shoulder disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include a jeep accident as reported in his June 2015 notice of disagreement. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a left shoulder disability in service or the assertion that an in-service event, injury, or illness led to his current left shoulder disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. (Continued on the next page) If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). J. Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.