Citation Nr: 22019976 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 15-18 774A DATE: April 3, 2022 ORDER Entitlement to service connection for a neck condition is denied. Entitlement to service connection for a left ankle condition is denied. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for left upper extremity carpal tunnel syndrome, claimed as neuropathy is remanded. Entitlement to service connection for a skin condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a neck condition at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran has had a left ankle condition at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle condition are not 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 served on active duty from July 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing in August 2021 before the undersigned Veterans Law Judge; however, a transcript of the proceeding could not be made. Thus, in November 2021, the Veteran and his representative were notified of this via letter and provided 30 days to request a second hearing. To date, neither the Veteran nor his representative have requested a second hearing. Accordingly, the Board may proceed to adjudicate the claim. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 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). 1. Entitlement to service connection for a neck condition 2. Entitlement to service connection for a left ankle condition The Veteran contends he has neck and left ankle disabilities due to overuse while in the military. The Board concludes that the Veteran does not have a current diagnosis of a neck or left ankle disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While VA primary care physician A.T. stated in an August 2021 letter that the Veteran had cervicalgia and left ankle strain/sprain, there is no indication in VA treatment records from that same provider that she has diagnosed the Veteran with these conditions despite subjective complaints of stiff neck and intermittently swollen left ankle. See, e.g., December 2010 and December 2012 VA treatment records. Consequently, the Board gives more probative weight to the VA treatment records and finds that the evidence of record persuasively weighs against finding that the Veteran has a current diagnosis of a neck or left ankle disability. Additionally, the Board notes that there is no indication that the Veteran's symptoms, to include pain, have caused him any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not had a neck or left ankle disability, or any symptoms of a neck or left ankle condition causing functional impairment, at any point during the appeal period. Therefore, the Board cannot grant his claim under any theory of entitlement. While the Veteran's application for service connection for neck and left ankle conditions illustrates that the Veteran believes he has current disabilities for VA purposes, he is not competent to provide diagnoses in this case. The issues are medically complex as they require specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board does not question the Veteran's sincerity in his belief that service connection is warranted for neck and left ankle conditions. However, without evidence of a current neck or left ankle disability, or symptoms causing functional impairment of earning capacity, the evidence of record persuasively weighs against the claim. Accordingly, the benefit-of-the-doubt rule does not apply, and service connection for neck and left ankle disabilities is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to service connection for a low back condition 2. Entitlement to service connection for left upper extremity carpal tunnel syndrome, claimed as neuropathy 3. Entitlement to service connection for a skin condition The Veteran has not been afforded a VA examination for his claimed low back, left upper extremity neuropathy, or skin disabilities. The record reflects current diagnoses of degenerative disc disease, left upper extremity carpal tunnel syndrome, and various skin conditions to include lipomas, eczema, folliculitis, keratosis, and atopic dermatitis. The Veteran's contentions that his back pain and carpal tunnel syndrome are due to repetitive heavy lifting from loading heavy artillery, and his skin conditions are due to exposure to herbicide agents in service, are suggestive of an association with service. Alternatively, the Veteran contends that his carpal tunnel syndrome is due to exposure to herbicide agents in service. The Veteran's military personnel records show that he served in Vietnam during the Vietnam Era; thus, exposure to herbicide agents is presumed. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Therefore, the Board finds that the low bar of McClendon has been met and that a VA opinion is warranted to determine the etiology of his lumbar degenerative disc disease, carpal tunnel syndrome, and various skin conditions. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further notes that, while the Veteran submitted an August 2021 letter by Dr. A.T opining that his lumbosacral strain, left arm neuropathy, and chronic papulosquamous rash were due to service, this opinion provided no rationale and is therefore inadequate. The Board further notes that the diagnoses provided in this letter are not consistent with the VA treatment records available. Thus, VA examinations and opinions are required to determine the nature and etiology of the Veteran's degenerative disc disease, left upper extremity carpal tunnel syndrome, and various skin conditions. 4. Entitlement to service connection for an acquired psychiatric disorder The Veteran claims that his psychiatric condition is caused by his service in Vietnam. The Board notes that the Veteran's psychiatric disorder was initially claimed as posttraumatic stress disorder (PTSD) and anxiety; however, the Board has broadened the issue on appeal to include any diagnosed acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran reports being on the combat field in combat support operations and as a result witnessing combat and death. The Veteran reported one event where he witnesses a helicopter crash, another where he saw bodies of the enemies that were missing heads and body parts, and multiple occurrences of being shot at, seeing tracers in the sky, at least one mortar attack, and hearing explosions frequently. See April 2013 Statement in Support of Claim; July 2015 VA treatment record. At the February 2012 VA hearing loss examination, the Veteran also reported preparing and passing ammunition for 155 howitzer weapons to the gunners in the field of combat, and that he was a couple of feet behind the gunners when they fired the weapons. The Veteran reports that he is unable to provide specific dates or locations of the various incidents because they occurred frequently while he was there. Thus, the RO was unable to verify the Veteran's claimed stressors. However, for the reasons that follow, the Board finds that the Veteran's lay statements alone are sufficient to find that the in-service stressor occurred. The Veteran's military personnel records show he served in the Army in the Republic of Vietnam from May 1967 to May 1968 during the Vietnam Counteroffensive Phase II. For his service, he was awarded (among other decorations) the Vietnam Campaign Medal and Vietnam Service Medal with two Overseas Service bars. While in Vietnam the Veteran was assigned to the Artillery Battery, 2nd Battalion 11th Artillery, and 3rd Battalion 16th Artillery. His military occupational specialty (MOS) was field artillery operator and intelligence assistant. The Board finds the Veteran's statements regarding his claimed in-service stressors related to the fear of hostile military or terrorist activity are consistent with the places, types, and circumstances of his service. The February 2012 VA examination psychiatrist/psychologist found his stressors are related to the fear of hostile military or terrorist activity and confirmed that the claimed stressors are adequate to support a diagnosis of posttraumatic stress disorder. As the Veteran reports his symptoms are related to these stressors, and there is no clear and convincing evidence to the contrary, the Board finds that the Veteran's lay testimony alone is sufficient to establish the occurrence of the claimed in-service stressors. 38 C.F.R. § 3.304(f)(3). Though the Board regrets further delay, more information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran has a current diagnosis of PTSD under the DSM-5. The February 2012 VA examination found the Veteran did not meet the diagnostic criteria for PTSD; however, April 2013 VA treatment records indicate a diagnosis of PTSD which the Veteran relates to his Vietnam service. Further, while the February 2012 examiner diagnosed anxiety disorder and phobia disorder, and the Veteran contends these conditions are due to service, the examiner did not provide an opinion on the etiology of those diagnosed disabilities. Therefore, a new VA examination and opinion in required to determine the Veteran's psychiatric diagnoses, and to opine whether any diagnosis is at least as likely as not related to service. 5. Entitlement to service connection for migraines The Veteran contends his migraines are related to service. Alternatively, he contends his migraines are caused or aggravated by his neck condition and/or acquired psychiatric disorder. While the Board has denied service connection for a neck condition, the claim of service connected for an acquired psychiatric disorder has been remanded. Thus, because a decision on the remanded issue of service connection for acquired psychiatric disorder could significantly impact a decision on the issue of service connection for migraines, the issues are inextricably intertwined. A remand of the claims for service connection for migraines is required. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and outstanding private treatment records, with all necessary assistance from the Veteran. 2. Schedule the Veteran for VA examinations for his degenerative disc disease, left upper extremity carpal tunnel syndrome, various skin conditions, and migraines. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Is degenerative disc disease at least as likely as not related to service, including overuse or repetitive heavy lifting? (b.) Is left upper extremity carpal tunnel syndrome at least as likely as not related to service, including overuse and repetitive heavy lifting, or presumed in-service exposure to herbicide agents? (c.) Are the Veteran's various skin conditions to include lipomas, eczema, folliculitis, keratosis, and atopic dermatitis at least as likely as not related to presumed in-service exposure to herbicide agents? The examiner is advised that a negative opinion cannot be based solely on the fact that the skin conditions and carpal tunnel syndrome are not on the list of diseases that are presumptively associated with exposure to herbicide agents. (d.) Are migraines at least as likely as not related to service? (e.) Are migraines at least as likely as not proximately due to any diagnosed acquired psychiatric disorder, to include anxiety and/or PTSD? (f.) Are migraines at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any diagnosed acquired psychiatric disorder, to include anxiety and/or PTSD? 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.