Citation Nr: 22018273 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-39 890 DATE: March 28, 2022 ORDER Entitlement to service connection for bilateral foot disorder is denied. Entitlement to service connection for respiratory disorder, to include allergies, as secondary to military environmental and/or Agent Orange exposure, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder (depression), and unspecified anxiety disorder (anxiety), secondary to military sexual trauma (MST), is remanded. FINDINGS OF FACT 1. The Appellant has not been diagnosed with a bilateral foot disorder. 2. The Appellant has not been diagnosed with a respiratory disorder, to include allergies. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for a respiratory disorder, to include allergies, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant has a period of active duty for training (ACDUTRA) from October 1981 to March 1982 with the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. To more accurately reflect the scope of the Appellant's claims, the issues have been recharacterized as shown on the title page. Service connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When a claim of entitlement to service connection is based on a period of ACDUTRA, there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA because of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA will not qualify as "active military, naval, or air service," and the appellant will not achieve "veteran" status for purposes of that claim. 38 U.S.C. § 101; 38 C.F.R. § 3.6; see also Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). In this case, as service connection has not been established for any disability, the Appellant has not yet achieved "veteran" status for purposes of this appeal. Therefore, no presumptions are applicable. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral foot disorder For the reasons that follow, the Board finds that the Appellant's service connection for a bilateral foot disorder claim must be denied. Significantly, the element of a current diagnosis is not met. The post service medical records do not reference a disability and although the Appellant asserts that she has foot pain, pain without impairment in earning capacity is not a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). At the November 2021 Board hearing, the Appellant testified that her bilateral foot disorder is related to her military service, to include wearing boots and carrying assigned heavy gear. She testified that she uses over-the-counter cream for pain and shoe inserts. The Board notes that the Appellant's military occupational specialty (MOS) was personnel administrative specialist. Although her DD Form 214 reflects the Rifle Sharpshooter award, she served during the period of ACDUTRA. Also, the Appellant's available service records show no complaints, treatment, or diagnosis related to any bilateral foot condition. A July 1981 examination noted all body parts as normal. The Appellant denied having any foot trouble. See July 1981 Report of Medical History. The Appellant's post service medical reports do not reference a foot disorder either. The Board acknowledges that the Appellant has not been afforded a VA examination for her bilateral foot disorder. However, the standards of McLendon are not met in this case as the Appellant is not shown to have a current disability, or that she has a current disability or persistent or recurrent symptoms of a current disability that may be associated with an event, injury, or disease in service. See McLendon v. Nicholson, 20 Vet. App. 76 (2006). The Board notes that the Appellant is competent, as a lay person, to attest to factual matters of which she has first-hand knowledge. In addition, lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Appellant is not competent to render a diagnosis and attribute a diagnosis to service or any event of service. As noted, the Appellant's available service records, for her active duty for training from October 1981 to March 1982, and post-service treatment records do not reflect any complaints of, diagnoses of, or any references to, a bilateral foot condition. In sum, upon review of the evidence of record, the Board finds that entitlement to service connection for a bilateral foot disorder is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, the weight of the evidence is against the Appellant's claim; thus, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. The claim is denied. 2. Entitlement to service connection for respiratory disorder, to include allergies, as secondary to military environmental and/or Agent Orange exposure For the reasons that follow, the Board finds that the Appellant's service connection for a respiratory disorder, to include allergies claim must be denied. The Appellant contends that her respiratory disorder, to include allergies, is due to military environmental exposure during basic training. See March 2017 Notice of Disagreement (NOD). At the November 2021 Board hearing, the Appellant testified that during basic training she was told that she was exposed to Agent Orange. She testified that she experiences allergies and daily headaches, but she has not been treated for her symptoms. Instead, she self-medicates with over-the-counter medication. Initially, a review of the record shows no evidence of the alleged military environmental and/or Agent Orange exposure. The Appellant's active duty for training was from October 1981 to March 1982. The Appellant's available service records also show no complaints, treatment, or diagnosis related to any respiratory disorder or allergies. A July 1981 examination noted all body parts as normal. The Appellant denied having any health issues. See July 1981 Report of Medical History. Her post-service treatment records show no diagnosis or complaints of a respiratory disorder or allergies. A January 2017 VA treatment record shows that the Appellant specifically denied having any known allergies. The record fails to show the presence of a current diagnosis and fails to show any claimed environmental exposure. The Board acknowledges that the Appellant has not been afforded a VA examination for her respiratory disorder, to include allergies claim. However, the standards of McLendon are not met as the Appellant is not shown to have a current disability sustained in service and there is no other competent lay or medical evidence suggesting the presence of a disability or residuals thereof with any association to service. McLendon v. Nicholson, 20 Vet. App. 76 (2006). The Board also acknowledges the Appellant's contentions. As noted, the Appellant is competent to provide testimony as to issues subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the Appellant's lay assertions are not competent, credible, and probative evidence. As noted, the Appellant's service records and post-service treatment records do not reflect a diagnosis of any respiratory disorder or allergies. In fact, as noted, her January 2017 VA treatment record shows that the Appellant denied having any known allergies. Additionally, the Appellant is not competent to offer an opinion with regard to an intricate medical question, including a diagnosis of a complex condition or a nexus between a diagnosed disability and her ACDUTRA. The Board notes that no military environmental or Agent Orange exposure has been conceded and there is no indication of any such findings in her service records. During her period of ACDUTRA, the Appellant's MOS was personnel administrative specialist and there is no indication of foreign service. To the extent that the Appellant is alleging that she experienced military environmental and/or Agent Orange exposure during her period of ACDUTRA, the Board finds that the objective evidence of record does not support her contentions. Thus, her contentions are not credible and are of no probative value. In sum, upon review of the evidence of record, the Board finds that entitlement to service connection for a respiratory disorder, to include allergies, is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, the weight of the evidence is against the Appellant's claim; thus, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. The claim is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, secondary to MST The Appellant contends that her PTSD is a result of MST during her period of ACDUTRA. See November 2016 statement from the Appellant; see also November 2016 statement from R.C. At the November 2021 Board hearing, the Appellant testified that she was sexually assaulted by multiple servicemen. After the incident, she saw a chaplain, but she was told to follow the chain of command and the incident was never reported. The Appellant testified that she has been experiencing anger, panic attacks, and other symptoms since that time. A review of the Appellant's VA treatment records shows a diagnosis of PTSD, depression, and anxiety as a result of MST, as well as ongoing treatment for her symptoms. See e.g., January 2017 VA treatment record. VA treatment records also show that the Appellant attempted suicide in her 20s. See January 2017 VA treatment record. Based on the foregoing, a remand is needed for a VA examination. The matter is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the Appellant's claims file. 2. Schedule the Appellant for a psychiatric VA examination with a qualified clinician regarding the nature and etiology of the Appellant's acquired psychiatric disorder, to include PTSD, depression, and anxiety. The entire claims file, including a copy of the Remand, must be made available to, and be reviewed by, the VA examiner. The examiner is asked to opine on: a) Whether the evidence of record, including any behavior changes, military records, lay or medical evidence, etc., indicates that a military personal assault occurred. b) Whether the Appellant has a diagnosis of PTSD under the DSM-V criteria. c) If the Appellant has a diagnosis of PTSD, the examiner is to opine as to whether the Appellant's PTSD is at least as likely as not related to her active service, to include claimed in-service stressor of MST during ACDUTRA. d) Whether the Appellant has any other diagnosis of a psychiatric disorder, to include depression and anxiety. e) For any other diagnosed psychiatric disorder, to include depression and anxiety, the examiner is to opine as to whether the Appellant's condition is as likely as not related to her active service, to include claimed in-service stressor of MST during ACDUTRA. The examiner must provide a complete rationale for all opinions expressed and conclusions reached. The Appellant's and other lay statements of record, and VA treatment records showing a diagnosis of PTSD, depression, and anxiety as a result of MST during ACDUTRA, should also be discussed. 3. After completing # 1-2, readjudicate the claim. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Appellant and her representative. Afford the Appellant and her representative the appropriate time period to respond. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.