Citation Nr: 18139656
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 16-07 174
DATE:	September 28, 2018
ORDER
Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. 
Entitlement to service connection for a left shoulder condition is denied. 
REMANDED
Entitlement to service connection for erectile dysfunction, to include as secondary to a back condition, is remanded.
Entitlement to service connection for gastroesophageal reflux disease (GERD), is remanded.
Entitlement to special monthly compensation based on loss of use of a creative organ is remanded.
Entitlement to service connection for a right forearm injury (to include right hand extensor tendonitis, tensynovitis, dequervain’s, organic graphospasm, fracture, and muscle, joint, and/or ulnar nerve parasthesia (claimed as nerve impairment)) is remanded.

FINDINGS OF FACT
1. The Veteran does not have a current diagnosis of PTSD.
2. The preponderance of the evidence is against a finding that a left shoulder disability is the result of a disease or injury in active duty service.
CONCLUSIONS OF LAW
1. The criteria for service connection for PTSD are not met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
2. The criteria for service connection for a left shoulder disability have not been met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1998 to February 2000.
These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran submitted correspondence in March 2018 and indicated that he no longer wished to continue the following granted and deferred claims: 1) entitlement to an increased rating for a right forearm scar; 2) entitlement to an increased rating for headaches; 3) entitlement to an increased rating for left leg shin splints; 4) entitlement to an increased rating for right leg shin splints; 5) entitlement to an increased rating for a left ankle condition; 6) entitlement to an increased rating for a left wrist condition.  As such, these claims are no longer before the Board.
The Veteran’s claim for entitlement to service connection for degenerative disc disease of the lumbar spine was granted in a November 2017 rating decision.  The RO subsequently denied increased ratings for the condition in February 2018 and April 2018, but the Veteran has not filed a notice of disagreement with either decision.  Therefore, the claim is not currently before the Board.  
The Veteran’s claims for entitlement to service connection for a left shoulder disability and entitlement to service connection for posttraumatic stress disorder (PTSD) were denied in the August 2013 rating decision.  The Veteran filed a timely notice of disagreement and a statement of the case (SOC) was issued in December 2015 for PTSD, but did not include the claim in his February 2016 Substantive Appeal, VA Form 9.  The RO then erroneously included the claim in a June 2016 supplemental statement of the case (SSOC).  The RO addressed the left shoulder claim in a December 2016 SOC, but the Veteran did not submit a Substantive Appeal, VA Form 9.  In March 2018, the Veteran submitted correspondence indicating that he was no longer pursuing the PTSD and left shoulder claims.  However, in April 2018, the Veteran inquired about these claims, as they were not addressed in the most recent SSOC and rating decision.  The Veteran indicated that he did not receive the June 2016 SSOC for PTSD or the December 2016 SOC for the left shoulder, as the documents were sent to his neighbor’s home.  The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not a jurisdictional requirement, that the filing of a timely substantive appeal may be waived, and that where the RO takes actions to indicate that such filing has been waived (for instance by issuing an SSOC), the Board has jurisdiction to decide the appeal.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).  In this case, the RO’s actions for the PTSD claim, combined with his April 2018 correspondence, are sufficient to show that the Veteran believed that the issues he omitted on his Substantive Appeal were being continued.  As such, the Board will take jurisdiction over the issues of entitlement to service connection for a left shoulder condition and entitlement to service connection for PTSD.
The issue of entitlement to service connection for a left wrist fracture was on appeal until it was granted in a February 2018 rating decision.  During a September 2017 Informal Hearing Conference, the Veteran included the additional claim of a left wrist ganglion cyst, which is a neurological disability.  Despite appearing in subsequent SSOCs, the issue of entitlement to service connection for debridement of a left wrist ganglion cyst has not been formally adjudicated by the RO, and is therefore not subject to disagreement.  As such, the Board does not have jurisdiction over this unadjudicated claim, and it is referred to the RO for appropriate action.  38 C.F.R. § 19.9 (b) (2016).
Finally, while the Veteran’s representative has recently identified entitlement to service connection for irritable bowel syndrome as an additional matter on appeal, the record does not reflect that the Veteran submitted a timely notice of disagreement as to this matter following the August 2013 rating decision’s denial of the claim.  Therefore, the Board finds that it does not have jurisdiction over this issue.
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection is granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).
Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).

1. Left Shoulder
During an in-service physical examination in October 1999, the Veteran indicated he did not have any pain in his shoulders.  
On his January 2000 separation examination, the Veteran’s upper extremities were noted to be normal.  
The Veteran received a VA examination in March 2012 and was diagnosed with left shoulder rotator cuff tendinopathy.  The examiner did not, however, provide an opinion with regards to its etiology. 
The Veteran received a VA examination in November 2017 and the examiner noted a diagnosis of left rotator cuff tendonitis.  The Veteran indicated he injured his shoulders during boot camp training, and an MRI in 2009 revealed rotator cuff tears.  The examiner concluded, however, that the left shoulder injury was less likely as not related to service, as there was no in-service related medical documentation to support a finding that the shoulder condition existed during active service dates.  
The Veteran submitted correspondence in September 2017 and emphasized that his left shoulder problems were documented on his separation physical examination.  He stated that he repeatedly injured his left shoulder in various military duties and trainings.  
The Veteran received a final VA examination in January 2018 and the examiner noted a diagnosis of left shoulder strain.  The examiner noted that the Veteran’s service medical records were silent for a shoulder injury, as was the separation examination.  Post-service shoulder complaints began around 2009, and the Veteran worked in construction as a tile worker.  The examiner indicated he reviewed the Veteran’s file, and all lay statements and the Veteran’s work history in construction.  Based on the totality of the record, he concluded that there was insufficient evidence that active duty caused the left shoulder strain.  Therefore, the disability was less likely as not related to his active duty service.
The Board finds the January 2018 opinion to be highly probative evidence against the Veteran’s claim.  The Board finds it to be credible and competent, as the examiner provided a thorough rationale with regards to the Veterans left shoulder disability and its lack of connection to service.  The Veteran asserted that his shoulder injury began during service as a result of training and various military duties.  The January 2018 examiner, however, gave a competent medical opinion indicating that the Veteran’s left shoulder disability was not related to service, highlighting the lack of treatment and the Veteran’s relevant post-service occupation in construction.  In light of the competent medical evidence indicating that the Veteran’s left shoulder disability is not related to service, the Board finds that service connection on a direct basis is not warranted.
2. PTSD
Service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304 (f) (2016). 38 C.F.R. § 4.125 currently requires a diagnosis of PTSD using the criteria in the 5th edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran’s testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997).
When the claimed PTSD stressor is physical or sexual assault in service, 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, mental health counseling centers, hospitals, or physicians; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of 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. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from other sources may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA will submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault has occurred. 38 C.F.R. § 3.304 (f)(4). Additionally, a medical opinion may be used to corroborate a personal-assault stressor. Menegassi v. Shinseki, 683 F.3d 1379 (Fed. Cir. 2011).
Entitlement to service connection for PTSD must be denied.  The Veteran received a VA PTSD examination in March 2012 and the examiner concluded that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria.  He indicated that the Veteran suffered from a substance induced mood disorder, alcohol abuse, and cannibis abuse.  The examiner then noted the Veteran’s mental health history and found that the Veteran received a PTSD screen in October 2011 and endorsed zero out of four symptoms.  The examiner then considered the Veteran’s stressor, where he described feeling like he was singled out by his sergeant.  He did not, however, find that this stressor was adequate to support a PTSD diagnosis.  
The Board finds the March 2012 VA examination highly probative and concludes that there is no current PTSD disability; thus, the first element of the service connection claim has not been satisfied.  Congress specifically limits entitlement for service connected disease or injury to cases where incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Thus, in this case, without evidence of a current disability, direct service connection for PTSD is not warranted.
REASONS FOR REMAND 
1. Erectile Dysfunction
Regarding the Veteran’s claim for entitlement to service connection for erectile dysfunction, to include as secondary to service-connected degenerative joint disease of the lumbar spine, a VA examination was performed in January 2018.  However, the examiner’s opinions were inadequate, as the examiner provided a negative nexus opinion with regards to causation but did not offer an opinion as to aggravation.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013).
2. GERD
The Veteran received a VA examination in January 2018 and the examiner noted a 2012 diagnosis for GERD.  The examiner opined that there was insufficient evidence in the record to conclude that the Veteran’s GERD was related to active duty service, therefore it was less likely as not related.  The Board notes that a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination).  Dalton v. Peake, 21 Vet. App. 23 (2007).  Therefore, this claim must be remanded for a new examination.
3. Right Arm Injury
The Veteran received a VA examination in November 2017 and the examiner noted a diagnosis of a possible superficial sensory nerve neuropathy scar of the right forearm.  The examiner, however, did not confirm the diagnosis after completing the examination, and a negative nexus opinion was provided based on a lack of continued care and treatment for the initial in-service forearm injury.  Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”).  Therefore, this claim must be remanded for a new examination.
4. Special Monthly Compensation
The issue of special monthly compensation for loss of use of a creative organ is inextricably intertwined with the issue of entitlement to service connection for erectile dysfunction.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  Therefore, the Board must defer consideration of this claim until the development is complete on the issue of service connection for erectile dysfunction.
The matters are REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine the nature and etiology of his erectile dysfunction.  The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed.
The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s erectile dysfunction had its onset in service or is otherwise the result of an incident in service.
The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s erectile dysfunction was caused or aggravated by his degenerative disc disease of the lumbar spine.  Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms.
If the examiner finds that the Veteran’s erectile dysfunction disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified.  
The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.
2. Schedule the Veteran for a VA examination to determine the nature and etiology of his GERD.  The examiner should review the claims folder and note such review in the examination report.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s GERD had its onset or is otherwise related to the Veteran’s military service.  
The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.
3. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed right arm injury.  The examiner should review the claims folder and note such review in the examination report.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed arm injury had its onset or is otherwise related to the Veteran’s military service.  
The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record.  Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record.

 
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Daniels, Associate Counsel 

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