Citation Nr: 18124060
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 13-00 953
DATE:	August 3, 2018
ORDER
Entitlement to service connection for a bilateral ankle disorder is denied.
Entitlement to service connection for a lung disorder is denied.
Entitlement to service connection for scars of the forearm and ankles is denied.
Entitlement to service connection for an acquired psychiatric disorder is granted.
REMANDED
Entitlement to service connection for a heart disorder is remanded.
Entitlement to service connection for ulcers is remanded.
Entitlement to service connection for a sleep disorder is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to service connection for liver lesions is remanded.

FINDINGS OF FACT
1. A bilateral ankle disorder was not manifest in service or within the one-year presumptive period following service.  A bilateral ankle disorder is not attributable to service.
2. A lung disorder was not manifest in service.  It is not attributable to service.  Bronchiectasis was not manifest within one year following service.
3. Scars of the forearm and ankles were not manifest in service and are not attributable to service.
4. Major depression is attributable to in-service personal assault.  
CONCLUSIONS OF LAW
1.  The criteria for service connection for a bilateral ankle disability are not met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 
2. The criteria for service connection for a lung disability are not met.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
3. The criteria for service connection for scars of the forearm and ankles are not met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 
4. The criteria for service connection for major depression are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1960 to March 1964.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
In September 2015, the Board remanded this matter for further evidentiary development.  The requested development was completed, and the case has now been returned to the Board for further appellate action.  As VA examinations were provided for the required disabilities, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).
Neither the Veteran nor his representative have raised any 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 a duty to assist argument).

Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active 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) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).
Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis and bronchiectasis, if the Veteran has established a current disability and it is manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  
For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.”  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).
1. Service connection for a bilateral ankle disorder
The Veteran seeks service connection for a bilateral ankle disorder that he contends is due to an electrocution injury in service.  See Board Hearing testimony.  The Veteran explained that he did not believe he had a joint problem due to the electrocution, but he felt numbness to toes on both feet, which he has had ever since the electrocution.  See Board Hearing testimony.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has a current diagnosis of osteoarthritis of both ankles, and evidence shows that the Veteran sustained an electrocution injury to the ankles in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of osteoarthritis began during service, within the one-year period following service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The April 2016 VA examination report acknowledged the Veteran’s reports of ankle pain for at least 30 years.  At that time, the Veteran did not report numbness in the toes.  The examiner found the osteoarthritis was less likely than not related to the incident in service.  The examiner reasoned that osteoarthritis would have progressed farther given the Veteran’s age and weight if it had been manifest in service.  The examiner also reasoned that electrical current injuries are not reported in medical literature to contribute to the risk of arthritis. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  
While the Veteran is competent to report having experienced symptoms of pain and numbness in the ankles and toes since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of osteoarthritis, or due to the electric current injury.  The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and particular injuries and stimuli.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the VA examiner’s opinion, and service connection is not warranted for osteoarthritis.
With respect to numbness in the toes, the Board finds that any such disorder is not disabling and therefore, the Veteran does not have a current disability. The Board recognizes the recent decision in Saunders v. Wilkie that “pain alone can serve as a functional impairment and therefore qualify as a disability.”  886 F.3d 1356 (2018).   However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain.  Id.  Rather, the Court stated “[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity.”  Id.  In this case, no such showing has been made.  Treatment records and VA examination reports do not indicate complaints of the disorder.  The Board hearing testimony in which the Veteran describes the numbness does not also describe a functional impairment.  Moreover, at the time, the Veteran indicates the numbness could be due to his diabetes mellitus.  Accordingly, service connection is not warranted for numbness in the toes.
2. Service connection for a lung disorder.
The Veteran seeks service connection for a lung disorder.  He asserts that he was exposed to asbestos and other environmental hazards in service.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.  Furthermore, the Board must determine whether bronchiectasis manifest in service or within one year of separation from service.
The Board concludes that, while the Veteran has a current diagnosis of chronic obstructive pulmonary disease and chronic bronchitis, and evidence shows that the Veteran was treated for bronchitis in service, and he was likely exposed to asbestos and other chemicals, the preponderance of the evidence weighs against finding that the Veteran’s COPD and the current chronic bronchitis began during service or is otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).  Moreover, the Board finds that the Veteran’s post-service diagnosis of bronchiectasis was not a disorder that manifest in service or within one year of separation from service.
The December 2010 VA examiner found that the Veteran had diagnoses of bronchiectasis and restrictive lung disease. The examiner found that these disorders were less likely as not due to his probable asbestos exposure because X-ray and CT findings revealed no evidence of asbestosis.
Pursuant to Board remand, an October 2016 VA examination was conducted.  The October 2016 VA examiner found that Veteran’s bronchitis in service was not chronic and therefore not related to the current disorders. The examiner reasoned that the Veteran’s history report of pneumonia for 15 to 20 years following service was not supported by documentation, noting that there were negative entries in the separation examination and three negative radiographic chest studies.  The examiner also found a 21-year history without chronicity or evidence of pneumonia. Regarding COPD, the examiner found it to be mild and that the Veteran’s positive smoking history is likely the most important risk factor for COPD.  The examiner also found that the Veteran was without complaint or chronicity of symptoms during military service from exposure to cleaning agents, and fumes from sulfuric acid, oil, and gas.  The examiner did note the in-service history of sore throats and colds in this analysis. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).
Private treatment records show that bronchiectasis was diagnosed in July 2010.  This is many years after separation from service.
The Veteran is competent to report having experienced symptoms of breathing difficulties and coughs and colds.  He is also competent to report bouts of pneumonia or bronchitis that were diagnosed by a medical professional. However, he is not competent to determine that these symptoms were manifestations of the current COPD or bronchiectasis.  The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 
Consequently, the Board gives more probative weight to the VA examiners’ opinions and medical records.  Service connection, therefore, is not warranted.
3. Service connection for scars of the forearm and ankles
The Veteran seeks service connection for scars on his arms, the front of his legs, and the top of his ears due to fighting a fire in service.  See Board Hearing testimony.  The Veteran also seeks scars on the Veteran’s feet and ankles due to an electrocution injury in service.  See Board Hearing testimony.  The Veteran discussed how his skin breaks easily, although it may be caused by diabetes, according to his testimony.
The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease.
The Board concludes that, while the Veteran has three very small, very faint scars noted on the April 2016 VA examination, the preponderance of the evidence weighs against finding that these scars began during service or are otherwise related to an in-service injury, event, or disease.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).
The April 2016 VA examination report acknowledged the Veteran’s scars and reports of injury during service.  However, the examiner noted that the scars were only found by very close inspection.  The examiner opined that the scars were less likely than not due to service.  The examiner reasoned that the separation examination documented scars, but made no mention of the scars on the feet, ankles or forearms.
The VA examiner’s opinion is probative, because it is based on consideration of the medical history, allowing for the possibility that records are missing.  The opinion also provides an explanation that contains clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  
While the Veteran is competent to report having scars related to the in-service incidents, the Board finds the separation examination to be most probative in this case.  The examination was recorded close in time to the events described by the Veteran.  As it is a recorded document, the Board gives it greater probative weight than the Veteran’s recollections some forty or so years later.  Consequently, service connection is not warranted.
4. Service connection for an acquired psychiatric disorder
The Veteran seeks service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a generalized anxiety disorder, a major depressive disorder, or other mental disorder.  The Veteran asserts that the psychiatric disorder is the result of a sexual assault while in basic training for the Navy.
The Board concludes that the Veteran has current diagnoses of PTSD and major depression that are related to the Veteran’s described sexual assault in service.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
A September 2010 record from treating psychologist Dr. S.G. diagnosed the Veteran with PTSD and major depression.  The psychiatrist linked the diagnoses to not having the opportunity to deal with the aftermath of the assault.  She notes that the Veteran reacted to the assault by getting married young and soon after the incident. An additional physician stated that he had treated the Veteran for over twenty-five years for depression.  The physician stated that the recently exposed memories of sexual assault “can” explain the problems the Veteran has had through the years with obesity, depression, obstructive sleep apnea and hypertension.
An April 2016 VA examination resulted in a finding of no mental disorder diagnosis because of purportedly invalid self-report of symptoms.  Specifically, the examiner stated that the MMPI-2 testing the Veteran underwent yielded an invalid profile that suggested the exaggeration of the current symptoms.  The examiner stated that, given the Veteran’s approach to testing, his self-report regarding symptoms and severity during this evaluation could not be deemed valid at that time.  Nonetheless, the examiner found that the Veteran’s report of the assault and rape stressor was adequate to support a PTSD diagnosis.
The Board finds that the April 2016 VA examination report is of lesser probative value than the reports of the treating professionals with respect to the rendering of a diagnosis.  It is clear through the numerous medical records and physician statements over the years that the Veteran has been treated for an acquired psychiatric disorder, either depression or PTSD.  The treatment has occurred during the appeal period. In fact, the record shows that the Veteran is prescribed medications for the disorder.  Thus, the lack of a diagnosis during the April 2016 VA examination is afforded little probative weight, and the Board concludes that the Veteran has a current disability.
The Board finds the diagnosis of depression is linked to the in-service personal assault by virtue of the treatment records of Dr. S.G., supported by the vaguer statement by the second physician.  The April 2016 VA examination report also supports the link by noting that the stressor supports a diagnosis of PTSD.
The Board bases its award on major depression rather than PTSD because no corroboration is necessary with a depression disorder.  As the evidence of record shows that the in-service personal assault is related to the Veteran’s major depression, service connection is warranted.
REASONS FOR REMAND
In light of the grant of service connection for an acquired psychiatric disorder and the Veteran’s contentions that other disorders were due to the stress of dealing with the in-service personal assault, the following issues are remanded in order to obtain a VA examination.


1. Service connection for a heart disorder and for ulcers is remanded.
The Veteran asserts that his heart disorder is due to the stress of the in-service incident that resulted in his psychiatric disorder.  See Board Hearing testimony.  The Veteran asserted that he reacted to the assault by trying to work himself to death.
2. Service connection for a sleep disorder and for hypertension is remanded.
The Veteran seeks service connection for a sleep disorder.  He describes fighting in his sleep beginning in service and ever since.  See Board Hearing testimony. A December 2014 statement from a physician reported that the recently exposed memories of sexual assault in service “can” explain the problem’s he’s had through the years with obesity, depression, obstructive sleep apnea and hypertension.
3. Service connection for liver lesions is remanded.
The Veteran seeks service connection for liver lesions.  He asserts they may be due to the stress he experienced in service that led to his psychiatric disorder.
The matters are REMANDED for the following action:
1. Schedule the Veteran for an examination or examinations by appropriate clinicians to determine the nature and etiology of the Veteran’s heart disorder, ulcers, obstructive sleep apnea, hypertension and liver lesions.  Addressing each disorder separately, the examiner must opine as follows:
a)	whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to service.
b)	If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability in question was caused or aggravated by a service-connected disability, to include depressive disorder.  Aggravation is defined as a worsening beyond the natural course of the disability. 
The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Rocktashel, Associate Counsel 

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