Citation Nr: 1749049	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-22 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for arthritis of the neck.  

2.  Entitlement to service connection for arthritis of the knees.  

3.  Entitlement to service connection for arthritis of the feet.  

4.  Entitlement to service connection for a bilateral shoulder disability.  

5.  Entitlement to service connection for an ankle disability.  

6.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) due to an in-service personal assault.  

7.  Entitlement to service connection for a back disability.  

8.  Entitlement to service connection for temporomandibular joint (TMJ), also claimed as a jaw injury.  

9.  Entitlement to service connection for fatigue.  

10.  Entitlement to service connection for hypertension.  

11.  Entitlement to service connection for an ulcer condition, to include duodenitis and duodenal ulcers.  

12.  Entitlement to a total disability rating based upon individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Williams, Counsel 


INTRODUCTION

The Veteran served on active duty from May 1976 to June 1976 in the Navy and from August 1977 to October 1977 in the Marine Corps, with additional periods of National Guard and Reserve service.  

These matters come to the Board of Veterans' Appeals (Board) from a July 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2014, and a copy of the hearing transcript has been associated with the claims file.  

The case was previously before the Board in June 2016 when it was remanded for additional development.  Review of the evidence of record reveals that the requested development has been completed.  As such, the Board finds there is no prejudice to the Veteran, and the Board may proceed with adjudication.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).  

To the extent that the Veteran has submitted additional evidence to the claims file since the September 2016 Supplemental Statement of the Case (SSOC), the Veteran's representative submitted a June 2017 waiver of initial consideration of such evidence by the AOJ.  Therefore, such evidence has been properly considered by the Board herein.  38 C.F.R. §§ 20.800, 20.1304(c) (2016).  Additional evidence associated with record is cumulative or redundant of evidence previously of record, or otherwise not pertinent to the claims being decided herein.  Therefore waiver of the procedural right of the agency of original jurisdiction having initial consideration of this evidence is not necessary.  See generally 38 C.F.R. § 20.1304.


FINDINGS OF FACT

1.  Arthritis of the neck did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between arthritis of the neck and active service.

2.  Arthritis of the knees did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between arthritis of the knees and active service.

3.  There is no current diagnosis of arthritis of the feet.

4.  A bilateral shoulder disability did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between a bilateral shoulder disability and active service.

5.  An ankle disability did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between an ankle disability and active service.

6.  An acquired psychiatric disorder did not begin in service and there is no probative evidence of a medical nexus between an acquired psychiatric disorder and active service.

7.  A back disability did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between a back disability and active service.

8.  There is no current diagnosis of a TMJ disorder.

9.  Fatigue did not begin in service and there is no probative evidence of a medical nexus between fatigue and active service.

10.  Hypertension did not begin in service, has not been continuous since service and there is no probative evidence of a medical nexus between hypertension and active service.

11.  An ulcer condition, to include duodenitis and duodenal ulcers, did not begin in service and there is no probative evidence of a medical nexus between hypertension and active service.

12.  The Veteran does not have any service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for service connection for arthritis of the neck have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).

2.  The criteria for service connection for arthritis of the knees have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).

3.  The criteria for service connection for arthritis of the feet have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).

4.  The criteria for service connection for a bilateral shoulder disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 

5.  The criteria for service connection for an ankle disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 

6.  The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 

7.  The criteria for service connection for a back disability have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 

8.  The criteria for service connection for TMJ have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 

9.  The criteria for service connection for fatigue have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 

10.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 

11.  The criteria for service connection for an ulcer condition, to include duodenitis and duodenal ulcers, have not been met.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 

12.  The criteria for establishing entitlement to TDIU are not met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.16(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Veteran was advised of VA's duties to notify and assist in the development of the claims at issue by notice letters dated in September 2009, October 2008, June 2009, July 2009, and October 2009.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

With respect to the duty to assist, available service treatment records have been obtained, as have VA and private treatment records.  In April 2010 memo of unavailability, the VA detailed all steps attempted to obtain outstanding service treatment records, and provided notice of their unavailability to the Appellant in May 2010.  Subsequently, additional service treatment records were obtained and associated with the record.  The December 2014 Board hearing transcript and the Veteran's statements are associated with the claims file.  

The Veteran was afforded a VA examination in July 2010 with addendum opinion in September 2016 regarding his claimed ulcer condition, the reports of which have been associated with the claims file.  When read in conjunction, the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the claims being decided herein.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his claimed disorders.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

Pursuant to the Board's June 2016 remand instructions, additional treatment records, Army Criminal Investigation Command (CID) records, records search with the U. S. Army and Joint Services Records Research Center (JSRRC) for corroboration of the Veteran's reported personal assault, and the September 2016 addendum opinion were obtained and associated with the record.  Accordingly, the Board finds that there has been substantial compliance with the remand directives and, therefore, no further remand is necessary regarding the claim being decided herein.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). 

The Board acknowledges that during the December 2014 Board hearing, the Veteran's representative noted that the Veteran had not received VA examinations for his claims other than his claimed ulcer condition.  The Board acknowledges that the Veteran has not been afforded a VA examination with respect to the appeal of service connection for an acquired psychiatric disability, arthritis of the neck, knees, and feet; a bilateral shoulder disability; an ankle disability; a back disability; TMJ; fatigue, and hypertension.  VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  See McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

In this case, because the weight of the evidence demonstrates that there is no in-service injury, disease, or event; that the Veteran did not in fact have the claimed conditions in service; and that any such symptoms were not shown in service, there is no duty to provide a VA medical examination.  Because there is no in-service injury, disease, or event to which a competent medical opinion could relate the claimed disabilities, there is no reasonable possibility that a VA examination or purported opinion could aid in substantiating the current claims of service connection.  See 38 U.S.C.A. § 5103A(a)(2) (West 2014) (VA "is not required to provide assistance to a claimant... if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required).

In the absence of evidence of an in-service injury, disease, or event, referral of the claims to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disabilities would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury, disease, or event, and could only result in a speculative opinion or purported opinion of no probative value.  In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disabilities and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value.  The United States Court of Appeals for Veterans Claims has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value.  See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected).

Referral of this case for an examination or to obtain a medical opinion would be a useless act.  The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the appeal of service connection for the claimed disabilities.  See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).

Neither the Veteran nor his representative has raised any further issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  In sum, there is no indication of additional notice or evidence that would be reasonably likely to assist the Veteran in substantiating the current claims.

Service Connection Laws and Regulations

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 

For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Board notes that Veteran did not have 90 days of active service.  Therefore, the chronic disease presumption does not apply in this case.

Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6.

Additionally, without previously established veteran status, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, as well as the presumptions of soundness and aggravation, are inapplicable to periods of ACDUTRA and INACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010).  The Veteran has not been deemed qualified for veteran status based upon any periods of ACDUTRA or INACDUTRA, thus these presumptions do not apply.

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a)(West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative 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 veteran.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016).  

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000).  

Analysis

Arthritis of the feet and TMJ

The Veteran has claimed that he has arthritis of the feet and TMJ which are directly related to injuries as a result of his reported in-service personal assault.  

For the reasons set forth below, service connection is not warranted in this case for arthritis of the feet or TMJ.  As the analysis for a arthritis of the feet and TMJ is similar, the claims will be analyzed together.

A review of the record does not show a current diagnosis of arthritis of the feet or TMJ.  While a finding that the Veteran had a disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has been diagnosed with any arthritis of the feet or TMJ at any time since he filed his current claims.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).  

According to a March 2008 VA treatment report, x-rays of the foot did not demonstrate arthritis.

While the Veteran is competent to report having pain or discomfort, the evidentiary record does not reflect any diagnosed arthritis of the feet or TMJ.  See Sanchez-Benitez, supra (a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted; "pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted"). 

The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  However, in this case, the Board notes that the Veteran has not identified any findings of arthritis of the feet or TMJ.  

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1131.  See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Unless there is a current disability, there can be no valid claim for service connection for the disability.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

For the reasons stated above, the Board finds that the Veteran does not currently have arthritis of feet or TMJ.  Since there is no evidence of any current arthritis of the feet or TMJ, the preponderance of the evidence is against the claims for service connection.  Therefore, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The claims for service connection for arthritis of the feet and TMJ are denied.  

Acquired psychiatric disorder

The Veteran has consistently reported that his PTSD and other mental disorders are a result of an in-service personal assault; specifically, he has reported that he was attacked, beaten, knocked unconscious, and sexually assaulted by several men while serving in the Army National Guard of New Jersey at Fort Drum, New York in 1985.  For the reasons set forth below, service connection is not warranted in this case for an acquired psychiatric disorder.

At the outset, the Board finds that the Veteran has a current acquired psychiatric disability.  VA treatment records reflect diagnoses including PTSD, bipolar disorder, and anxiety disorder.  

With regard to PTSD, establishing service connection for it requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f) (2016); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). 

If the Veteran did not engage in combat with the enemy, or the Veteran did engage in combat but the alleged in-service stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged in-service stressor.  Instead, the record must contain credible supporting evidence which corroborates the Veteran's testimony or statements.  Moreau v. Brown, 9 Vet. App. 389, 395 (1996).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  See Moreau, 9 Vet. App. at 395-396; see also Cohen, 10 Vet. App. at 142.

Upon review of all the evidence, lay and medical, the Board finds the weight of the evidence shows that an acquired psychiatric disability was not incurred during the Veteran's period of active service, did not have onset during active service, and was not otherwise caused by, military service.  

Service treatment records do not reflect any history, complaints, treatment, or diagnosis of PTSD or bipolar disorder, or any other psychiatric disability.  

There is no evidence of record that the Veteran engaged in combat with an enemy during his time in the military, nor has he so asserted.  Therefore, his lay testimony alone is not sufficient to verify his stressors.  Instead, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of these claimed events. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

As stated above, the Veteran has contended that he was assaulted in service.  The Veteran has provided different statements regarding the details of assault.  In a May 2009 VA treatment record, the Veteran denied any military sexual trauma.  In a June 2009 private treatment record, the Veteran reported he was attacked in 1983 or 1985.  According to a July 2016 letter, the Veteran stated he was beaten, knocked unconscious, and sexually assaulted by three men during April or May 1984.  During the December 2014 Board hearing, the Veteran indicated the assault took place in 1985.   

According to a March 2014 Memorandum, the Department of the Army Criminal Investigation Command determined that the investigation did not develop sufficient evidence to establish probable cause to prove or disprove the Veteran was sexually assaulted, and the initial complaint of the Veteran could not be substantiated or refuted.  

Similarly, the response from JSSRC reflects that they were not able to locate unit records or document the incident described by the Veteran.  

The applicable laws governing PTSD due to personal assault require corroborating evidence of the account.  See 38 C.F.R. § 3.304(f)(5).  In this case, corroborating type evidence has not been submitted or received, and the available evidence does not show behavior changes, deterioration in work performance, or other indicia of personal assault.  A December 1984 memo reflects that the Veteran had multiple unexcused absences and requested to be excused from annual training due to injuries sustained in an automobile accident.  The Board emphasizes that this evidence does not weigh in favor of his claim and there is no other evidence that may be considered to corroborate the report of personal assault or MST.  

The record indicates that the Veteran did not report any alleged incident of personal assault from any period of service until approximately twenty-five years later.  In addition, according to the May 2009 VA treatment record, the Veteran denied any military sexual trauma.  

The Board finds that the Veteran's accounts of injury and incurrence of an acquired psychiatric disability during service, while competent, are not credible.  The Board notes that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence; however, the absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 

The Board has relied on not only the absence of treatment records for complaints of, and treatment for stress and psychiatric symptoms in service, but also the evidence of record that is inconsistent with the Veteran's contentions regarding the onset (during service) of psychiatric symptoms.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).  

Specifically, a VA treatments record dated in November 2006 reflects that the Veteran denied military sexual trauma.  Another May 2009 VA treatment record, when asked about his psychiatric history, the Veteran reported that he was believed to be suicidal after a motorcycle accident in 1987 and was given a diagnosis of bipolar disorder.  He also reported that he was hospitalized five years prior for a week because he couldn't handle his divorce.  In addition, according to the May 2009 VA treatment record, the Veteran denied any military sexual trauma.  

Because an in-service injury, disease, or event, has not been shown, to include any in-service symptoms associated with a psychiatric disability, the Board does not reach the additional question of the relationship (nexus) between any current acquired psychiatric disability and service.  In this regard, in VA treatment records, it has been stated that the Veteran's PTSD is related to his military sexual trauma.  See e.g. May 2011 VA treatment record.  However, it appears that these statements are, at least in part, based on the inaccurate factual assumption that the Veteran experienced an assault or military sexual trauma in service.  Simply stated, such statements have no probative value.  See Reonal, 5 Vet. App.at 461 (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected).  

With regard to his other psychiatric disorders, because his stressors cannot be verified, there is no probative evidence that there was in-service event or injury.  As noted above, the Veteran has not asserted that any other in-service events or injuries occurred to cause his claimed psychiatric disorders.  Further, the evidence does not show that his psychiatric disorder first manifested in service.  Notably, his service treatment records are negative for any psychiatric symptoms.  Therefore, with regard to his bipolar disorder and anxiety disorder, the second element of a service connection claim is not met.  See Shedden, 381 F.3d at 1166-67. 

The Board finds that the preponderance of the evidence is against service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and anxiety disorder.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). 

Arthritis of the neck and knees; a bilateral shoulder disability; an ankle disability; a back disability; and fatigue 

Similarly, the Veteran has claimed that he has arthritis of the neck and knees; a bilateral shoulder disability; an ankle disability; a back disability; and fatigue which are directly related to injuries as a result of his reported in-service personal assault.  

For the reasons set forth below, service connection is not warranted in this case for arthritis of the neck and knees, as well as fatigue and bilateral shoulder, ankle, and back disabilities.  As the analysis for arthritis of the neck, knees, as well as fatigue and bilateral shoulder, ankle, and back disabilities is similar, the claims will be analyzed together.

The Veteran has current disabilities including cervical disc disease, degenerative arthritis of the lumbar spine, and bilateral shoulder impingement.  See e.g. December 2009 VA treatment report.  Degenerative joint disease of the right knee as well as ankle arthritis are noted in a May 2015 VA treatment report.  VA treatment records also reflect that the Veteran becomes fatigued.  See VA treatment records dated in March 2007, March 2009, August 2009, November 2010, and March 2016.  Thus the first element of a service connection claim has been satisfied.  Shedden, 381 F.3d at 1166-67. 

Service treatment records are negative for any complaint, diagnoses or treatment of arthritis of the neck and knees, as well as fatigue and bilateral shoulder, ankle, and back disabilities.  Here, the Veteran did not serve 90 days or more, and therefore, service connection cannot be granted on a presumptive basis for his claimed arthritis.

Although the Veteran has reported that his claimed disabilities are a result of his claimed in-service assault, the record indicates that the Veteran did not report any alleged incident of personal assault from any period of service until approximately twenty-five years later.  However, he reported other difficult events, including work and auto accident injuries to his low back, right knee, and ankle on separate occasions, as well as chest pain, and fever.  A May 1984 private treatment report reflects that the Veteran was in an auto accident in March 1984 causing low back injuries.  According to a July 1984 private treatment records, the Veteran reported being involved in a work injury.  It was noted that he sustained an injury to his low back, and right knee on two occasions as well as right ankle.  In June 1985, the Veteran complained of chest pressure.  Review of symptoms was positive for ulcer and questionable dyspnea only.  A December 1997 private treatment report reflects that the Veteran was injured in November 1997 after a motor vehicle accident.  It was further noted that he was previously treated for a low back injury secondary to a motor vehicle accident.  According to a September 2003 private treatment report, the Veteran complained of feeling hot and sweaty, but denied all other complaints and it was noted that the only compliant he had was fever and burning or feeling very hot.  He also reported a history of an ankle injury in the prior three months, for which he was on Worker's compensation.  According to an October 2005 private treatment record, the Veteran reported a back injury since September of that year and was being treated by a workmen's' comp physician.  

The Board has considered the Veteran's statements asserting he was assaulted in service.  However, competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991).

The Veteran's lay statements in regard to his pain and fatigue are probative insofar as they report observable symptoms.  See Layno, supra.  However, the Board finds that the Veteran's reported assault in service and of symptoms ever since active service, if that is what he is indeed claiming, while competent, not credible.  It is not disputed that the Veteran was seen for various ailments in 1984 and 1985; however, there were no complaints or notations of treatment for the claimed disabilities during active service.  

The Board finds that the Veteran's accounts of injury during service, while competent, are not credible.  The Board notes that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence; however, the absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 

The Board has relied on not only the absence of treatment records for complaints of, and treatment for symptoms of the claimed disabilities in service, but also the evidence of record that is inconsistent with the Veteran's contentions regarding the onset (during service) of his joint symptoms and fatigue.  See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).  

Because an in-service injury, disease, or event, has not been shown, to include no in-service symptoms associated with the claimed neck, shoulder, knee, ankle, and back disabilities or fatigue, the Board does not reach the additional question of the relationship (nexus) between any current neck, shoulder, knee, ankle, and back disabilities or fatigue and service.  

As such, the preponderance of the evidence is against the appeal of service connection for arthritis of the neck and knees; a bilateral shoulder disability; an ankle disability; a back disability; and fatigue, and the appeal must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Hypertension

The Veteran contends that he has hypertension related to his active service.  

VA treatment records reflect medical problems including hypertension.  Thus a current disability has been shown.  

The Veteran's service treatment records do not show a diagnosis for hypertension.  Here, the Veteran did not serve 90 days or more, and therefore, service connection cannot be granted on a presumptive basis for his claimed hypertension.

A June 1985 private treatment record reflects that the Veteran had a history positive for hypertension.  However, post service VA treatment records show that in March 2007, there was no assessment of hypertension.  VA treatment records dated in 2008 and since reflect that the Veteran has a past medical history of hypertension.  Nothing in these records link any current hypertension diagnosis to service. 

The Board acknowledges that, because hypertension is considered a "chronic" disability, the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim.  As hypertension was not noted in service, and as a notation of such condition is a prerequisite for the application of chronicity and continuity of symptomatology, service connection on the theory of chronicity and continuity of symptomatology does not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Further, the evidence of record does not support a finding of continuity of symptomatology.  

As noted above, a March 2007 VA treatment report reflects the Veteran denied hypertension.  Of note is the fact that the Veteran did not raise a claim of service connection for hypertension until 2009, over 30 years following active service.  If he had been experiencing continuous symptoms, it is reasonable to expect that he would have filed a claim much sooner, given that the Veteran filed claims for other disabilities.  For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. 

Even if the Board presumes that the Veteran's statements regarding any continuity of his symptoms are credible, he is not competent to opine as to the etiology of his symptoms or to the onset and etiology of his hypertension.  In this case, the pathology of these symptoms cannot be readily observed by laypersons and involves complex medical questions requiring specialized skill which the Veteran, as a layperson, does not possess.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (indicating that untrained laypersons are not competent to answer complex medical questions).  

Accordingly, as there is no competent and credible showing of continuity of symptomatology, service connection on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309 is unwarranted.

Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints.  There is no probative evidence contemporaneous with service or since service from any other source that establishes that the Veteran's current hypertension was either present in service, or are related to an injury, disease, or event of service origin.  Although post service VA medical records dated from 2008 show ongoing complaints and diagnoses related to the hypertension there is no competent and credible evidence that the claimed disability is caused by or related to service.  

In this case, there is also no evidence that the Veteran is medically qualified to render an opinion as to the etiology of any current hypertension.  Here, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.  Consequently, his statements, without some form of objective medical corroboration, are not deemed to be of significant probative value. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  There is also no competent medical evidence of record relating the Veteran's hypertension to his period of service. 

In sum, the preponderance of the evidence weighs against a finding that any current hypertension developed in service or is related to any in-service event, illness, or injury.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); 3.102 

Ulcer condition, to include duodenitis and duodenal ulcer

The Veteran contends that he has a current ulcer condition as a result of active service.  For the reasons set forth below, service connection for an ulcer condition, to include duodentitis and duodenal ulcer is not warranted in this case.  

VA treatment and examination reports reflect findings of history of duodenitis and ulcer.  

Service treatment records reflect that the Veteran was initially seen in September 1977 with abdominal pain.  A subsequent upper GI series revealed abnormalities which were consistent with a diagnosis of duodenitis.   The impression was duodentitis, existed prior to entry.

The Veteran was afforded VA examinations in July 2010 and an addendum in September 2016 in order to determine the nature and etiology of any currently diagnosed ulcer condition.  The July 2010 VA examiner stated that there was no medical documentation of an ulcer during the Veteran's active service or currently.  The examiner noted that there was no current GI condition found.  Moreover, he stated that the history of duodenal ulcer noted within problem lists in VA treatment records was incorrect as it was based upon the Veteran's own reported history without any medical corroboration by VA treatment providers.  

Private medical records which were subsequently added to the record document a June 1985 diagnosis of an ulcer.  A VA addendum opinion was obtained to address all of the relevant evidence.  

According to the September 2016 addendum, the examiner noted that the June 1985 treatment record did state history of ulcer diagnosis but this was not from medical records so was of questionable accuracy.  In any event, he noted that the Veteran has no current ulcer/ duodenitis condition.  Rather, the examiner stated that the Veteran does have GERD (gastroesophageal reflux disorder), which he noted is a totally different condition and unrelated to ulcer/duodenitis.  The examiner further observed that there is neither evidence in the medical literature, consensus in the medical community or evidence in this specific case that supports a causal/aggravation relationship between these conditions.  Thus the examiner opined that it is less likely than not that the Veteran has a current ulcer condition, to include duodenitis and duodenal ulcers, which is etiologically related to his active service.

VA treatment records similarly reflect inconsistent diagnoses of history of ulcer.  In a January 2007 VA treatment record, the Veteran denied a history of ulcer disease.  A March 2007 VA treatment report noted a past medical history of duodenal ulcers in 1977.  A March 2008 VA treatment record reflects duodenal ulcers as a "pertinent positive," however ulcer is not listed as a diagnosis.  According to a November 2009 VA treatment record, the Veteran reported active peptic ulcers.  However, as noted above, following examination and additional diagnostic testing, the VA examiners have determined that no current ulcer exists.  Additionally, in the July 2010 examination report, the examiner stated that the history of duodenal ulcer noted within problem lists in VA treatment records was incorrect as it was based upon the Veteran's own reported history without any medical corroboration.  The September 2016 VA examiner also stated that the June 1985 treatment record did include history of ulcer diagnosis but this was not from medical records so was of questionable accuracy.

As the VA examiners' opinions, when read in conjunction, considered all of the pertinent evidence of record, to include statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two, the Board accords great probative weight to the VA opinions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).  Therefore, the Board finds that the July 2010 and September 2016 VA examiners' opinions, which provided a detailed rationale for the conclusions reached, are highly probative.

There is no other probative medical evidence which supports a diagnosis and nexus of the claimed ulcer condition and service.  The Board acknowledges that the Veteran is competent to report his symptoms and observations, to include his reports as to abdominal pain during the appeal period, and the Board finds these reports are credible.  However, the Board finds that the determinations as to diagnosis and etiology of any ulcer condition, to include duodenitis, are essentially medical questions, and as such are beyond the Veteran's competence to evaluate based upon his own knowledge and expertise.  Further, the record does not indicate that the Veteran has medical expertise or training, to include in the fields of gastroenterology.  Thus, his determination that he has a current ulcer condition related to service is also not competent evidence.  See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).  Thus, the Veteran's lay opinions that he has a current ulcer condition which is related to service have no probative value.

The Board finds that the Veteran does not currently have an ulcer condition related to service.  Since there is no evidence of any current ulcer condition related to service, the preponderance of the evidence is against the claim for service connection.  Therefore, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The claim for service connection for ulcer condition, to include duodenitis and duodenal ulcer, is denied.  

TDIU

The Veteran asserts that his overall deteriorating health due to his claimed conditions prevents him from working.  Total disability ratings for compensation may be assigned when the veteran is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.16(a).  Here, the Veteran does not have any service connected disabilities.  His claim for TDIU was premised on a theory that his claimed disabilities precluded employment.  As the determination above found that service connection is not warranted for the claimed disabilities, a threshold legal criterion for establishing entitlement to this benefit sought is not met.  Accordingly, the claim seeking TDIU must be denied as lacking legal merit.  See Sabonis v. Brown, 6 Vet. App. 426 (1994). 



ORDER

Service connection for arthritis of the neck is denied.  

Service connection for arthritis of the knees is denied.  

Service connection for arthritis of the feet is denied.  

Service connection for a bilateral shoulder disability is denied.  

Service connection for an ankle disability is denied.  

Service connection for an acquired psychiatric disorder, to include PTSD due to an in-service personal assault, is denied.  

Service connection for a back disability is denied.  

Service connection for TMJ, also claimed as a jaw injury, is denied.  

Service connection for fatigue is denied.  

Service connection for hypertension is denied.  

Service connection for an ulcer condition, to include duodenitis and duodenal ulcers, is denied.  

Entitlement to TDIU is denied.  




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s