Citation Nr: 24016554 Decision Date: 04/17/24 Archive Date: 04/17/24 DOCKET NO. 20-29 861 DATE: April 17, 2024 ORDER Entitlement to service connection for an acquired psychiatric disability, to posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for bilateral carpal tunnel is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for an ankle disability is denied. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for bilateral hearing loss (BHL) is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record is at least in equipoise that PTSD and bipolar disorder is attributable to the Veteran's service. 2. The weight of the medical and other evidence of record is against a finding that the Veteran has a low back disability that had its onset in-service or is otherwise related to a disease or injury during service. 3. The weight of the evidence is against finding that high blood pressure began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 4. The weight of the evidence is against finding that bilateral carpal tunnel began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 5. The weight of the evidence is against finding that sleep apnea began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 6. The weight of the evidence is against finding that a right knee disability began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 7. The weight of the evidence is against finding that a left knee disability began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. 8. The weight of the evidence is against finding that a right ankle disability began during active service or within a year of service discharge or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.71a. 3. The criteria for service connection for high blood pressure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for bilateral carpal tunnel have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably from November 1979 to December 1980. These matters come before the Board of Veterans' Appeals (Board) from a September 2017 rating decision of the Department of Veterans Affairs (VA) RO in Waco, Texas. In his September 2020 substantive appeal, the Veteran requested a BVA hearing by live videoconference. However, in a February 2022 letter, the Veteran, through his attorney, withdrew his request. There have been no additional requests for a hearing and, as such, his hearing request is deemed withdrawn and the Board will proceed with adjudication. See 38 C.F.R. § 20.702 (d). The Board notes that the Veteran, through his attorney, stated in a November 2021 communication that if the issues of entitlement to service connection for PTSD and TDIU are granted, he would withdraw the remainder of his claims. However, the Board does not assign initial ratings and a TDIU claim is intertwined with the grant of entitlement to service connection for PTSD. Therefore, the necessary condition, that both PTSD and TDIU be granted to withdraw the remainder of the claims, is not met. The remaining claims continue in appellate status. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Additionally, if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5). Also, in cases involving an allegation that PTSD is connected to military sexual assault, the Federal Circuit has held that "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for PTSD and bipolar disorder is granted. The Veteran asserts that he was sexually assaulted while in service. See A 21-071a Statement in Support of Claim for PTSD Secondary to Personal Assault. He relayed in his statement that three men accosted him, knocked him down, and two of them picked him up and threw him against the bulkhead and knocked him out. When he came to, he could tell that he had been sexually assaulted. He additionally relayed that they threatened to throw him overboard if he said anything and that it happened two additional times. The Veteran's service treatment records do not document the alleged sexual assault, nor do they show any complaints or treatment for psychiatric symptoms. This is not inconsistent with his assertion that he did not report this incident in service. As noted, "the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur." AZ, 731 F.3d at 1318. The Veteran's STRs do confirm that he reported an assault in service, though not of a sexual nature. The earliest documented report of the Veteran's MST is his March 2017 statement in support of his claim. However, as noted above, the Veteran had reported a physical assault in service. Additionally, psychiatry treatment records noted the Veteran relayed an in-service assault as early as March 2006. The Veteran has been consistent in his reports to VA medical personnel. See Fed. R. Evid. 803 (4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons")). In consideration of the consistency of the Veteran's report of an assault which the Board, and mental health professionals, find credible, the Board finds the evidence persuasive in supporting the occurrence of the MST under the relaxed PTSD stressor criteria for in-service personal assault. 38 C.F.R. § 3.304 (f)(5). The probative medical evidence supports a link between the Veteran's PTSD and the MST stressor. The Veteran provided two private IME opinions from mental health professionals, who assessed the Veteran as fully meeting the criteria for a diagnosis of PTSD due to MST, and both found that the Veteran's PTSD was due to MST in service. In this regard, the Veteran submitted an August 2021 and July 2019 independent medical evaluations (IME) by a clinical psychologist and psychiatrist, respectively. Each IME diagnosed the Veteran with posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). The examiners noted multiple MST markers, to include disciplinary actions in service, a history of enuresis in service following his MST, substance abuse and legal troubles following discharge. The psychologist reviewed the Veteran's case file, to include September 2017 and August 2020 VA examinations, and the July 2019 IME. He was extremely thorough in his analysis and addressed how and why he disagreed with the VA examinations and agreed with the July 2019 IME. Given the diagnosis of PTSD, credible supporting evidence for MST under the relaxed PTSD stressor criteria for in-service personal assault, and the probative medical evidence linking the Veteran's PTSD to the in-service MST, the Board finds that the approximate balance of the evidence weighs in favor of finding that entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021) (en banc). 2. Entitlement to service connection for a back disability is denied. The Veteran contends that he is entitled to service connection for a low back disability. The Veteran is diagnosed with lumbar disc fissuring with protrusion. See September 2017 VA Examination. A review of the Veteran's service treatment records (STRs) do not reveal complaints or treatment for a low back disability. The Veteran was afforded a VA examination in September 2017 to determine the nature and cause of his low back disability. The Veteran did not contend that his back disability began in service. Rather, he relayed that his back disability was due to a motor vehicle accident (MVA) in 2013. The examiner found the Veteran's low back disability to be less likely than not due to service. The Board finds that while the Veteran has a diagnosis of a low back disability, there is no credible evidence that the Veteran had a low back disability during or due to his active military service. In fact, the Veteran himself stated that he sustained his initial back injury in a MVA in 2013, over three decades following his discharge from active duty. Thus, the second prong of service connection, an in-service occurrence, fails, and service connection must be denied. The weight of the evidence is against a finding that the Veteran's back disability was incurred in or a result of service or manifested within one year of service. 38 C.F.R. § 3.309 (a), 3.307(a)(3), 3.309(a). The benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). Service connection for a back disability is denied. 3. Entitlement to service connection for high blood pressure is denied. 4. Entitlement to service connection for bilateral carpal tunnel is denied. 5. Entitlement to service connection for sleep apnea is denied. 6. Entitlement to service connection for a right knee disability is denied. 7. Entitlement to service connection for a left knee disability is denied. 8. Entitlement to service connection for a right ankle disability is denied. The Veteran contends that he has bilateral carpal tunnel, sleep apnea, bilateral knee disabilities, high blood pressure, and a right ankle disability that are due to service. Review of the service treatment records (STRs) do not reveal any complaints, diagnoses, or symptoms of bilateral carpal tunnel, sleep apnea, bilateral knee disabilities, high blood pressure, or a right ankle disability. The Board notes that the Veteran has not been afforded a VA examination for his claimed disabilities; however, the Board finds that one is not required. The VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the second and third elements required to trigger the VA's duty to assist are not met. The only evidence in support of the claim consists of the Veteran's application asserting his entitlement to service connection. Mere conclusory or generalized lay assertions that an in-service event or illness caused a current disability are insufficient to establish a nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board recognizes the Veteran is competent to identify readily observable symptomology and to describe experiencing such symptomology since service. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, to the extent that the Veteran asserts that he has the above disabilities, and they are related to his active service, the Board notes that he has not been shown to have the medical training necessary to render complex medical opinions or opine as to the nature and cause of his disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377. Accordingly, although McClendon sets a low bar, that bar has not been met as there is no competent evidence of record indicating diagnoses or links between his claimed disabilities and his active service. For the reasons discussed above, the Board concludes that the weight of the evidence is against a finding that the Veteran's claimed bilateral carpal tunnel, sleep apnea, bilateral knee disabilities, high blood pressure, and right ankle disabilities are related to service. As the weight of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, entitlement to service connection for bilateral carpal tunnel, sleep apnea, bilateral knee disabilities, high blood pressure, and right ankle disabilities is denied. REASONS FOR REMAND 1. Entitlement to service connection for DM is remanded. The Veteran's claim for service connection for DM meets the McLendon elements for a VA examination. The Veteran has a current diagnosis of DM, and his service treatment records (STRs) documented glucose in his urine. See September 1980 STRs. Finally, there is insufficient information on which to decide the claim and therefore a remand is necessary to obtain an examination for DM. 2. Entitlement to service connection for BHL is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Veteran's claim for service connection for BHL and tinnitus meets the McLendon elements for a VA examination. The Veteran's STRs document threshold shifts from entrance to separation and the Veteran was seen for ear issues. The Veteran contends that BHL and tinnitus are due to military noise exposure. As there is insufficient information on which to decide the claims a remand is necessary to obtain an examination for BHL and tinnitus. 4. Entitlement to a TDIU is remanded. The Board notes that the Veteran does not meet the schedular criteria for a TDIU. However, his claim of entitlement to a TDIU is inextricably intertwined with his service connection claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Consequently, the claim for entitlement to a TDIU must be remanded. The matters are REMANDED for the following actions: 1. Obtain additional VA treatment records. 2. With any necessary assistance from the Veteran obtain all outstanding private treatment records. 3. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's DM. The examiner is asked to review the claims file and provide the following information: (a) Opine as to whether the Veteran's DM was incurred in or otherwise related to service. 4. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's BHL and tinnitus claims. The examiner is asked to review the claims file and provide the following information: (a) State whether the criteria for a bilateral hearing loss diagnosis for VA purposes is met. (b) Opine as to whether the Veteran's BHL and tinnitus disabilities were incurred in or otherwise related to in-service noise exposure. Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.