Citation Nr: 23013263 Decision Date: 03/04/23 Archive Date: 03/04/23 DOCKET NO. 19-03 349 DATE: March 4, 2023 ORDER Service connection for body pain is denied. Service connection for bilateral shoulder and arm pain is denied. Service connection for lower back pain is denied. Service connection for bilateral hip pain is denied. Service connection for bilateral leg pain is denied. Service connection for eye problems is denied. REMANDED Entitlement to service connection for flat feet is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that body pain began during active service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that bilateral shoulder and arm pain began during active service or is otherwise related to an in-service injury or disease. 3. The evidence of record persuasively weighs against finding that lower back pain began during active service or is otherwise related to an in-service injury or disease. 4. The evidence of record persuasively weighs against finding that bilateral hip pain began during active service or is otherwise related to an in-service injury or disease. 5. The evidence of record persuasively weighs against finding that bilateral leg pain began during active service or is otherwise related to an in-service injury or disease. 6. The evidence of record persuasively weighs against finding that eye problems began during active service or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for body pain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral shoulder pain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for lower back pain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral hip pain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for bilateral leg pain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for eye problems are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to September 1992. This appeal to the Board of Veterans' Appeals (Board) is from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). On his January 2019 substantive appeal, the Veteran requested the opportunity to testify at a hearing before a Veterans Law Judge. A hearing was scheduled in August 2022, however, the Veteran did not appear for the hearing. The Veteran has not requested that the hearing be rescheduled, and he has not offered an explanation as to why he did not appear for the scheduled hearing. Under these circumstances, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of a current disability, an in-service incurrence or aggravation of an injury or disease, and a nexus between the claimed in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The Veteran has generally asserted that he now has body pain, bilateral shoulder and arm pain, lower back pain, bilateral hip pain, bilateral leg pain, and eye problems that are the result of his service. Unfortunately, the Veteran has not identified any incident during service that could have given rise to these claimed disabilities, and the record does not otherwise show any incurrence during service that could have caused the Veteran's claimed disabilities. In May 1992, the Veteran underwent an enlistment medical examination. Upon examination, the only medical deficiencies noted were flat feet, identifying body marks, scars, or tattoos, and a buildup of earwax. Concerning the Veteran's eyes, he was noted to have 20/20 vision in his right eye and 20/30 vision in his left eye. The Board points out that 20/30 vision in his left eye is considered myopia, or nearsightedness, and is a refractive error for which service connection is not available. 38 C.F.R. § 3.303(c). There was no other eye problem found upon examination. Further, a June 1992 service treatment record (STR) shows that the Veteran had 20/20 vision in both eyes. Unfortunately, there does not appear to be a separation examination of record, however the Veteran's STRs are largely silent as to any complaints of or treatment for body pains, shoulder or arm pain, lower back pain, hip pain, leg pain, or eye problems other than his noted refractive error. Additionally, the Veteran's personnel records do not indicate that he suffered any injury or support that there was any incident during service that may have given rise to these claimed disabilities. Simply put, the record does not support that there was any incident during the Veteran's active service that caused his claimed disabilities of body pain, bilateral shoulder and arm pain, low back pain, bilateral hip pain, bilateral leg pain, or eye problems. As a final initial matter, the Board acknowledges that the Veteran identified private treatment records. VA requested an authorization form to aid the Veteran in obtaining those records in a March 2018 letter. The Veteran did not respond to that letter and did not submit any of those records. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Moreover, the Board acknowledges that no VA examinations or medical opinions were obtained in regards to these claims. Notwithstanding, the Board finds that the low threshold for obtaining examinations and medical opinions in this case is not met becauseeven if the Board were to assume that there is evidence of current disabilities present respecting these claimsthe Veteran has not submitted any evidence to demonstrate any in-service injury, event or disease respecting these claims. In short, the Veteran has not provided evidence of any connection to service beyond stating that he should be service connected for these disabilities. Accordingly, VA has satisfied the duty to assist in this case and a remand is not necessary in order to obtain VA examinations and medical opinions respecting these claims herein denied. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the most probative evidence of record persuasively weighs against these claims of entitlement to service connection for body pains, bilateral shoulder and arm pain, low back pain, bilateral hip pain, bilateral leg pain, or eye problems. And, as the most probative evidence of record persuasively weighs against these claims, the benefit-of-the-doubt rule does not apply since the evidence for versus against the claims is not in relative (i.e., approximate) balance. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc), Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Flat Feet A Veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran's flat feet were noted on his May 1992 enlistment examination. The examiner indicated that his flat feet were asymptomatic at the time of entry, meaning, he had a diagnosis of flat feet but no associated symptoms. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, a veteran must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.'" Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). The STRs show that in June 1992, the Veteran complained of foot pain that had been bothering him for three days prior. The doctor attributed his foot pain to his flat feet. This shows that the Veteran's flat feet may not have been asymptomatic throughout his active duty. To date, the Veteran has not been afforded a VA examination for his feet and resultantly, no VA examiner has opined as to whether the Veteran's flat feet increased in severity during service and if so, whether it was due to the natural progress of the condition or instead, aggravation by service. As such, a remand is necessary to obtain a VA examination and opinion. See McLendon, supra. Tinnitus The Veteran asserts that he has tinnitus as a result of noise exposure during his active service. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was that of general construction equipment operator. While his period of active duty was short, noise exposure to construction noise is consistent with the circumstances of his service, including the seven week training course for his MOS. A review of the record shows that the Veteran underwent a VA audiology examination in April 2018. The Veteran reported an onset of tinnitus in 1998, so six years after his separation from service. He indicated that he had hazardous noise exposure after his separation from service, including firearms while hunting, heavy equipment, power tools, and motorcycles. Because of this, the examiner opined that the Veteran's tinnitus was not due to his service, rather it was attributable to his noise exposure after his separation from service. However, the examiner did not discuss whether the Veteran's hazardous noise exposure during service contributed to his tinnitus that onset later. As such, the Board finds that a remand for an opinion addressing the Veteran's noise exposure during service and his later onset of tinnitus is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Headaches The Veteran asserts that he has headaches that are related to his service. While the Veteran has not pointed to any specific incident during his service that may be the cause of his headaches, a review of the record shows that twice in September 1992, the Veteran presented to the clinic complaining of headaches. The Board points out that the Veteran has not submitted any evidence of a current headache disability. However, headaches are easily capable of lay observation. Thus, the Board is interpreting the Veteran's claim for service connection for headaches as an indication that he currently suffers from headaches. As such, a remand is warranted to obtain a VA examination to clarify whether the Veteran has a current headache disability, verses headaches as a symptom of another disability, and if so, whether it is due to his service, including his two complaints of headaches during service. See McLendon, supra. Psychiatric Disorder At the outset the Board points out that the Veteran filed claims for service connection for PTSD, psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct. As a function of the Board's de novo review authority, the Board has recharacterized his separate psychiatric claims more broadly as a claim for a psychiatric disorder, to include PTSD, psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Veteran asserts that he has a psychiatric disorder as the result of his active service from June 1992 to September 1992. The Board points out that the Veteran was a member of the Army National Guard, so his period of active service consisted of basic training. The record shows that the Veteran's National Guard service ended in 1994. In February 2018, the Veteran submitted multiple buddy statements asserting that he was different after he separated from service. In a written letter from his mother, she pointed out that the Veteran talks about how his drill sergeant mistreated him, among numerous other observations. These buddy statements also point out multiple potential psychiatric symptoms that are capable of lay observation, including the Veteran's excessive drinking, rage, his complaints of nightmares, and frequently brandishing a firearm and acting in a violent manner. Further, both the buddy statements and the Veteran's April 2018 Statement in Support of a claim for PTSD discuss that the Veteran killed someone, although actual documentation supporting this is not included in the claims file. As such, the Board finds that this claim for service connection for a psychiatric disorder warrants further development including clarification as to whether the Veteran has any current psychiatric disorder, and if so, discussion as to the etiology of that disorder. See McLendon, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination from an appropriate clinician for his feet. The claims file, including a copy of this remand, should be reviewed in conjunction with this examination. The examiner should opine as to whether the Veteran's flat feet, which are noted on his May 1992 entrance examination and found to be asymptomatic, were clearly and unmistakably NOT aggravated (permanently worsened beyond the natural progress) by his service? The examiner is asked to specifically comment on the June 1992 STR showing a complaint of foot pain that was attributed to his flat feet. The examiner must provide thorough explanations and support for all opinions expressed. 2. Obtain an addendum opinion from an appropriate clinician concerning whether the Veteran's noise exposure during service contributed to his onset of tinnitus six years after his separation from service. The claims file, including a copy of this remand, should be reviewed in conjunction with this examination. The Board points out that the Veteran's noise exposure during service includes that owing to his MOS of general construction equipment operator and that he attended a seven week school for this MOS. The examiner must provide thorough explanations and support for all opinions expressed. 3. Schedule the Veteran for a VA examination from an appropriate clinician for his headaches. The claims file, including a copy of this remand, should be reviewed in conjunction with this examination. The examiner should clarify whether the Veteran has a stand-alone headache disability, or if his headaches are, instead, a symptom of another disability. Further, if the Veteran is diagnosed with a stand-alone headache disability, the examiner is asked to opine as to whether it onset in, or is otherwise related to the Veteran's service, including his two complaints of headaches in September 1992. The examiner is asked to specifically comment on the September 1992 STRs showing complaints of headaches. The examiner must provide thorough explanations and support for all opinions expressed. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder, including PTSD, psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct. The claims file should be reviewed in conjunction with this examination and all tests deemed necessary should be accomplished and the results reported in detail. After examination of the Veteran and review of the claims file, the examiner should state any and all psychiatric disorders found, to include PTSD, psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and note the stressor on which that diagnosis is predicated, and whether such stressor is related to the Veteran's service. Concerning an in-service stressor, the Board points out the Veteran's April 2018 statement concerning a civilian fight during which he killed someone in 2002 (unverified). Further, the Board points to the February 2018 buddy statement from the Veteran's mother in which she indicates the Veteran discusses mistreatment by a drill instructor during active duty. The examiner is asked to determine whether either of these are sufficient to render a diagnosis of PTSD. The examiner should additionally discuss any circumstantial evidence in the Veteran's service records or claims file which would tend to corroborate any type of personal assault or harassment in service. For all other non-PTSD psychiatric disorders diagnosed, including psychosis, alcohol abuse, sleep problems, anxiety, bipolar disorder, depression, and misconduct, the examiner must opine whether each diagnosed disorder began during military service, within one year of discharge therefrom, or is otherwise the result of military service, to include any alleged in-service mistreatment by a drill instructor or the 2002 civilian fight as discussed above. In discussing the above, the examiner must address the Veteran's statements regarding onset of symptomatology and any statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner must provide thorough explanations and support for all opinions expressed. MARTIN B. PETERS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.