Citation Nr: 21030793 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-63 489 DATE: May 19, 2021 ORDER Entitlement to service connection of residuals of hypothermia is denied. REMANDED Entitlement to service connection of an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression, is remanded. Entitlement to service connection of residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection of migraine headaches is remanded. Entitlement to service connection of a left shin disorder is remanded. Entitlement to service connection of a right shin disorder is remanded. FINDING OF FACT The Veteran did not suffer an in-service hypothermia incident; his present reported symptoms are not related to any incident of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of hypothermia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1995 to May 2000, with additional prior service in the Army National Guard/Reserve. This matter comes before the Board of Veterans Appeals on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal previously came before the Board in October 2019, at which time it denied all of the claims presently a part of this decision. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued a memorandum decision in which it reversed the issues and remanded them for further appellate consideration by the Board. Also included in the October 2019 decision was a denial of service connection of bilateral hearing loss. It is noted that the Veteran did not appeal the Board's decision with regard to that claim, and the issue remains final. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 1. Entitlement to service connection of residuals of hypothermia The Veteran seeks service connection for residuals of hypothermia, which he asserts are the result of a cold injury during active service. The Board finds that the claim should be denied. As was addressed in the prior denial, the Veteran contends that he sustained hyperthermia in service during prolonged swims in his training as a Navy SEAL and his duties as a rescue swimmer. He states that he now has residual numbness and pain in his toes and fingers. The Board previously concluded that the Veteran did not have any present residuals of hypothermia, or any other neurological symptoms of a cold injury. The Board also concluded that the evidence did not support any in-service cold injury to which any present symptoms (if they exist) could be etiologically linked. The Court remanded the claim after VA conceded that the Board failed to discuss the Veteran's lay statements and whether or not they warranted an examination in this matter. After careful consideration, the Board finds that VA's duty to assist has not been triggered in this matter, and the claim should remain denied. With regard to the Veteran's assertion that he presently experiences neurological symptoms in his fingers and toes, the medical evidence of record does not document any such present symptoms. Rather, the Board noted a December 2004 medical record which attributed pain and swelling in his hands, inability to move his fingers, numbness in his fingertips, and poor capillary refill to a post-service physical injury. However, to the extent that pain is an observable symptom capable of lay reporting, the Board concedes that the Veteran's present assertions of neurological or post-cold injury symptoms in his fingers and toes could possibly trigger VA's duty to provide a medical examination in this matter. However, the Board continues to find that the evidence does not support the Veteran's sustaining a cold injury during active service. Upon review of the Veteran's service treatment records, there is no indication of any such incident or injury ever occurring. He did not complain of a cold injury or seek treatment for such a condition during service, despite seeking treatment for many lesser complaints. He did not report any symptoms which may be attributed to such an injury during active service. Upon separation he denied any such injury or symptoms, and his separation examination found his extremities and neurological systems to be normal. To the extent that the Veteran now reports that he experienced extreme cold conditions while training as a Navy SEAL and also as a search and rescue swimmer, as a lay person, he is competent to report incidents of which he has first-hand experience. However, once basic competency is met, the Board must assess the credibility of those lay statements. In the present matter, the Veteran asserts that on multiple occasions he was required to swim extended periods of time in cold water such that he required emergency treatment to rewarm his body. His representative also asserts that his extensive training as a rescue diver gives him the ability to identify hypothermia and understand its long-term effects. However, the record does not reflect that he was ever treated for hypothermia in service. If the Veteran was truly aware of the severity of a cold injury, and knew to identify it as such, it does not make sense that he did not seek medical treatment after such an injury, while also seeking treatment for many lesser issues such as sinus pain or shin splints. Neither did he mention any such injury or symptoms after the fact, to include on his separation examination, despite reporting other medical issues during active service. Further, the Board notes that between separation and his claim of service connection, the Veteran has not sought treatment for any symptoms attributable to a cold injury, with the exception of 2004, when his symptoms were specifically attributed to a contemporary physical injury. In short, between the time of the alleged injury, and his claim of service connection, there is simply no evidence of any residuals of a cold injury. Given the lack of contemporaneous medical evidence (despite the argument that the Veteran was competent to know such an injury took place); the intervening amount of time between the alleged injury and the Veteran's lay assertions; and the Veteran's own self-interest in this matter, the Board finds that the statements are not credible to establish that he sustained a cold injury during active service. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, lay statements made during treatment, erroneous recollection, and time of creation of evidence). The Board further notes that there is no medical evidence or opinion linking the Veteran's present reported symptoms to any incident of active service. The Board recognizes that the Veteran has not been afforded an examination in this matter. The Court remanded this appeal so that the Board could discuss whether the Veteran's lay statements warranted such an examination. VA's duty to assist only requires it to provide an examination when the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but "(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability." 38 C.F.R. § 3.159(c)(4)(i). The duty to provide a medical examination in a service connection claim is limited to situations that meet the criteria of 38 C.F.R. § 3.159(c)(4)(i). "If Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does." Robinson v. Peake, 21 Vet. App. 545, 553 (2008). Unlike the other issues remanded by the Court which at least showed some evidence of an injury or symptoms during service, although the Veteran is certainly competent to report present symptoms, the Board has concluded that the evidence does not support any in-service incident, illness or injury. Nor, given the great period of time between the alleged injury and the present claim without any evidence of ongoing symptoms or treatment, is there any evidence that the present symptoms may be related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, the Board finds that VA's duty to assist has not been triggered with regard to this claim, and it is not obligated to provide an examination in this matter. Finally, the Board recognizes the Veteran's belief that he has residuals of a cold injury sustained in service. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his purported cold injury residuals, especially in light of the fact that the evidence fails to demonstrate the onset of such symptoms, or any actual cold injury in service. In sum, the Board finds that the claim fails the second criteria of service connection, namely an in-service incident, illness or injury, and the third criteria of service connection, a link between a present disability and service. As such, the Board finds that the claim should be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection of an acquired psychiatric disorder, claimed as PTSD and depression, is remanded. 2. Entitlement to service connection of residuals of a TBI is remanded. The Veteran seeks service connection of residuals of a TBI, and a psychiatric disability which he has variously claimed as PTSD or depression. The record confirms that the Veteran sustained a head trauma in October 1998, when he was found unconscious and bleeding from his head. He required sutures to close the wound, although no specific concussion was identified at the time. He now asserts that he has various TBI residuals. To the extent that the Veteran is competent to report observable symptoms potentially attributable to a TBI, and the record clearly reflects he sustained a head injury during active service, the Board will remand this claim so that he may be afforded a TBI examination which assesses whether the Veteran sustained a TBI in service, and if so, whether he presently experiences any residuals of that TBI. The Veteran also claims PTSD. To date, VA did not find any specific in-service stressor. However, the Board notes that the Veteran's head injury may satisfy that criteria, warranting a PTSD examination. In remanding this appeal for an examination, the Board also notes that psychiatric symptoms are a potential residual effect of TBI, and therefore, consideration of any psychiatric diagnosis as a TBI residual should also be given. 3. Entitlement to service connection of migraine headaches is remanded. The Veteran seeks service connection of migraine headaches, which he asserts existed prior to service, and was worsened thereby. Although the Board previously found inadequate evidence to support the conclusion that the Veteran's headaches preexisted service, they were noted upon his entrance examination. Further, while there is no evidence or reports of consistent headaches during service, and he denied any such headaches upon separation, the Veteran is competent to report observable symptoms such as headache pain. The Board also recognizes that headaches can be a residual of TBI, and the record does endorse a head injury in October 1998. He also reported various sinus, head and ear pains throughout service. Therefore, on remand, the Veteran should be afforded a VA examination which fully assesses whether his headaches preexisted service, and if so, whether they were aggravated thereby, to include by any head injury he sustained in 1998. 4. Entitlement to service connection of a left shin disorder is remanded. 5. Entitlement to service connection of a right shin disorder is remanded. The Veteran asserts he has bilateral shin splints which he states began during active service. The record indicates that in December 1996 he reported right shin pain with a diagnosis of periostitis with early signs/symptoms of a stress fracture. For his part, he asserts that he first developed bilateral shin pain in service, with continuity to the present. The Veteran is certainly competent to report observable symptoms such as shin pain. Further, although they do not document bilateral shin pain in service, there is at least some confirmation of a right shin injury or disability during active service, which gives credence to the Veteran's lay statements. As such, the Board will remand these claims to afford the Veteran an examination on these issues. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a VA TBI examination. The examiner should be provided access and given an opportunity to review to the Veteran's claims folder and associated medical record. The examiner is asked to provide a response to the following questions: (a) Did the Veteran sustain a traumatic brain injury during active service, particularly in October 1998? (b) If so, does the Veteran presently experience any residuals which are at least as likely as not related to his TBI? The examiner should provide a rationale explaining how he arrived at the answers to these questions. 3. Schedule the Veteran for a VA psychiatric examination, to include consideration of PTSD and/or any other acquired psychiatric disability which may be diagnosed. The examiner should be provided access and given an opportunity to review to the Veteran's claims folder and associated medical record. For each identified psychiatric disability, the examiner is asked to provide a response to the following question: Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability had its onset in or is otherwise related to any incident of active service, to include his 1998 head injury? 4. Schedule the Veteran for a VA examination to assess his reported headache condition. The examiner should be provided access and given an opportunity to review to the Veteran's claims folder and associated medical record. The examiner is asked to provide a response to the following questions: (a) Did the Veteran's present headache condition (if found) clearly and unmistakably (undebatable) preexist the Veteran's service? (b) If the examiner finds it did clearly and unmistakably preexist service, was the Veteran's present headache condition clearly and unmistakably not aggravated by service? (c) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether the Veteran's present headache condition is at least as likely as not related to active duty service, including his 1998 head injury or his other complaints of ear and sinus pain throughout service. 5. Schedule the Veteran for a VA examination to assess his claimed bilateral shin condition. The examiner should be provided access and given an opportunity to review to the Veteran's claims folder and associated medical record. The examiner is asked to provide a response to the following questions: (a) Does the Veteran have a presently diagnosed disability which accounts for his present shin pain? In the alternative, if no diagnosis can be made, does the Veteran's shin pain result in loss of function of either leg? (b) If the answer is yes to either question, the examiner should state whether the present diagnosed disability or disabling leg pain had onset during active service or is otherwise related to any incident of active service, to include the Veteran's documented history of shin pain from 1996. J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, 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.