Citation Nr: 21031066 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 20-14 064 DATE: May 20, 2021 ORDER Entitlement to service connection for broken nose residuals is granted. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for residuals of traumatic brain injury (TBI) is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for lumbosacral strain with degenerative arthritis is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's broken nose residuals began during active service. 2. The preponderance of the evidence of record is against finding that the Veteran has had an acquired psychiatric disorder diagnosed at any time during or approximate to the pendency of the claim. 3. The evidence is in equipoise as to whether the Veteran's TBI residuals are related to his active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for broken nose residuals are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of TBI are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When, after careful consideration of all evidence and argument, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. "Reasonable doubt" means one that exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. 1. Entitlement to service connection for broken nose residuals Per the February 2017 VA examination report, the Veteran has a diagnosis of broken nose residuals which are at least as likely as not incurred in or were caused by his broken nose during service. The Board finds that the February 2017 VA medical examiner applied the wrong legal standard in opining that in the absence of a visible and palpable scar as residual of broken nose, the condition is not substantiated. See also October 2020 Appellant's Brief in Support of Entitlement to Disability Benefits. Here, the Board notes that service connection may be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Although the Veteran's disability does not present with a visible and palpable scar, the February 2017 VA medical examiner determined that the currently diagnosed residuals of broken nose relate to the broken nose the Veteran sustained in service, and therefore, by resolving reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for broken nose residuals as having incurred during the Veteran's active duty service. Id.; 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 38 C.F.R. § 3.303 (d); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder Per the February 2017 VA examination report, the Veteran does not have a currently diagnosed acquired psychiatric disorder. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). While the February 2017 VA examination report reveals that the Veteran has a personality disorder, personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Although the Veteran has at times been seen at the VA mental health clinic, to the extent that anxiety symptoms have been noted, the Board finds that any such diagnostic impression rendered for treatment purposes is insufficient to qualify as a diagnosis for compensation purposes. A psychiatric diagnosis for VA compensation purposes must conform to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), American Psychiatric Association (2013). 38 C.F.R. § 4.125. The Compensation examination conducted in February 2017 specifically reviewed the Veteran's symptoms in the context of the DSM and found that no diagnosis could be rendered. The Board finds this examination to be thorough and based on an accurate review of the record. As such, it is highly probative of the inherently medical question before the Board. Additionally, while the Veteran, as a lay person, is competent to report any psychiatric symptoms he has experienced, he is not competent to diagnose a psychiatric disability because making a psychiatric diagnosis requires medical expertise and falls outside the realm of common knowledge of a lay person. See generally Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"). As such, the Board finds that the preponderance of the evidence is against finding that the Veteran has a currently diagnosed acquired psychiatric disability; therefore, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for residuals of traumatic brain injury (TBI) Per the February 2017 VA examination report, the Veteran has a current diagnosis of a TBI. Additionally, the February 2017 VA examiner opined that as the Veteran did not have any memory problems prior to enlisting, those problems started after he was knocked off of a ladder in the Navy. Here, the Veteran provided lay testimony recounting two separate incidents during service in which he sustained concussions. The second incident relates to the one addressed by the February 2017 VA examiner, namely that he fell while ascending a ladder during service. See September 2020 Statement in Support of Claim. Relative to said fall, the Veteran added that to this day, he can still feel a kind of vague phantom pain that can occasionally bring on a headache. Id. Here, the Board finds the Veteran competent to report having experienced residuals of TBI since service as the reported symptomatology is lay observable. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In support of his claim for service connection, the Veteran also submitted a private medical opinion in support of his claim from A.C., BSN, RN, CCM, LNC stating that it is more likely than not that the Veteran sustained a mild TBI after falling off a ladder and hitting his head in service, which at least as likely as not resulted in long-term, chronic, and continued mild TBI symptomatology to include impairments in memory, judgment, orientation, social interactions, and neurobehavioral effects with residuals including headaches, hearing loss/tinnitus, alteration of smell or taste, and dizziness/vertigo. See October 2020 private medical opinion. A.C. added that although the Veteran's STRs are silent as to details of the impacts of the reported concussions, a concussion can go unnoticed or be misdiagnosed especially if it is mild, noting that mild concussions tend to go underreported in the military, especially when there are no significant concomitant orthopedic or soft-tissue injuries. Id. Lastly, the Board notes that there are no negative nexus opinions of record, VA or private. The private and VA medical opinions of record weighing in favor of the Veteran's claim were provided by medical professionals equally competent to render an opinion regarding whether the Veteran's currently diagnosed TBI condition incurred during his active duty service. Moreover, the aforesaid medical opinions reflect reasoned consideration of the evidence of record and include sufficient explanation to the respective opinions. See October 2020 Appellant's Brief in Support of Entitlement to Disability Benefits. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a positive nexus is established between his currently diagnosed lumbar degenerative disc disease with arthritis and his injury in service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 4. Entitlement to an evaluation in excess of 10 percent for lumbosacral strain with degenerative arthritis is remanded. Upon review of the record, a new VA examination is required in light of evidence of worsening symptomatology. The Veteran last received a VA examination in February 2017; however, recent VA treatment records indicate that the Veteran's service-connected back disability has worsened. See August 2020 VA treatment record ("Nothing makes the pain better and it [h]as progressively gotten worse..."). Given evidence of increased/worsening symptomatology, a remand is required to afford the Veteran with a contemporaneous VA examination to assess the current severity of his service-connected back disability. Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records since February 2021. 2. Schedule the Veteran for a new VA examination to assess the current severity level of his service-connected back disability. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.