Citation Nr: 18160679
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-06 686
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a back disability is denied.
Entitlement to service connection for a foot disability is denied.
Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied.
Entitlement to service connection for a personality disorder is denied.
Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C. section 1702 is denied.
FINDINGS OF FACT
1. A back disability was not manifested in active service, is not related to disease or injury or other event in active service, and first manifested many years after active service.
2. The weight of the evidence does not establish a current foot disability.  
3. The weight of the evidence does not establish PTSD.   
4. The Veteran’s personality disorder is not a disability for VA compensation purposes.
5. Although the Veteran served during the Vietnam Era, a psychosis or mental illness did not develop during or within two years of separation from active duty service. 
CONCLUSIONS OF LAW
1. The criteria for service connection for a back disability are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).
2. The criteria for service connection for a foot disability are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 
3. The criteria for service connection for PTSD are not met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).
4. The criteria for service connection for a personality disorder for compensation purposes may not be established as a matter of law.  38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.9, 4.127 (2018). 
5. The criteria for service connection for psychosis or mental illness for treatment purposes pursuant to the provisions of 38 U.S.C. § 1702 have not been met.  38 U.S.C. §§ 1702, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from March 1974 to February 1975.  This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  
1. Service Connection
In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein.  38 U.S.C. §§ 1110, 1131.  Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service.  38 C.F.R. § 3.303 (d) (2018).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis or a psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  
38 C.F.R. § 3.303 (b) applies to the “chronic diseases” under 38 C.F.R. § 3.309 (a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence.  38 U.S.C. § 7104(a).  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3.

2. Entitlement to service connection for a back disability and a foot disability is denied. 
The Veteran asserts that he has a back disability and a foot disability that are related to active service.  In an April 2016 statement, the Veteran stated that he injured his back and feet when he fell from a ship into water while painting the ship.  
The Board finds that the weight of the competent and credible evidence establishes that the Veteran does not have a current foot disability.  The record in this case is negative for any indication, other than the Veteran’s own general assertion, that he has a current diagnosis of a foot disability.  The Veteran did not provide any lay or medical evidence of foot symptoms.      
The Board acknowledges that the Veteran is competent to report observable symptoms.  However, as a layperson, he is not competent to provide a medical diagnosis for a foot disability.  The Veteran is not shown to possess the type of medical expertise that would be necessary to render a medical diagnosis.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 2011).  The Veteran has not provided any medical evidence to support his general contentions that he has a foot disability.    
Despite the Veteran’s contentions, a foot disability is not currently shown.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). 
In light of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a foot disability.  Accordingly, as the Veteran has not been shown to have this disorder, service connection for such is not warranted.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 
In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a foot disability, and that doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  Service connection is denied.
The Board finds that while there is evidence of current diagnoses of a back disability, the preponderance of the evidence weighs against finding that this disability began during service or is otherwise related to an injury, event, or disease in active service. 
There is competent and credible evidence of a current diagnosis of a back disability.  Private medical records dated in February 2009 and July 2009 show diagnoses of degenerative joint disease of the lumbar spine and lumbar disc disease with right lower extremity radiculopathy symptoms.  See also the June 2010 MRI report which shows worsening left foraminal narrowing at L4-L5, new left paracentral disc herniation at L5-S1 with potential left S1 neural compression, and worsening broad-based spondylitic change at L2-L3 and L3-L4 with mild central stenosis at both levels.  
The service treatment records do not show treatment or diagnosis of a back disability.  The Veteran separated from active service in February 1975.     
The record shows that the lumbar spine disc disease and degenerative joint disease were first diagnosed in 2009, over 30 years after separation from service.  With respect to negative evidence, the fact that there were no records of any complaints, treatment, or diagnosis of the claimed disability for many years after service separation weighs against the claim.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience continuous symptoms of lumbar spine disability in active service or since service separation.  The Veteran did not provide lay or medical evidence of chronic back symptoms in active service and since service separation.  The record does not show chronic back symptoms in active service and since service separation.  Degenerative joint disease and disc disease of the lumbar spine were first detected in the 2000’s.  Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307 (a) and 38 C.F.R. § 3.303 (b) is not warranted.
Moreover, there is no competent evidence that indicates there is an association between the back disability and active service. The Veteran has made general assertions that service connection is warranted for the current back disability and the current disability is related to an injury in active service.  However, as noted above, the Veteran, as a layperson, does not have the medical expertise to opine as to the etiology of an orthopedic disability or relate a disability to a specific injury.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Thus, the Veteran’s assertion that the current back disability is related to active service is not a competent medical opinion and is not afforded significant probative weight.  The Veteran has not identified or produced competent evidence that indicates that this back disability is associated to active service.    
Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for a back disability.  Therefore, service connection is denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
A VA medical opinion and examination were not provided to address the theory that the Veteran’s the back disability and the claimed foot disability are related to active service.  
The Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).  Rather, the Secretary’s obligation under 38 U.S.C. § 5103A (d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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.  See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006).  As discussed, there is no probative evidence of an in-service symptoms or diagnosis.  There is no lay or medical evidence of a current foot disability.  There is no indication of an association between the current lumbar spine disability or the claimed foot disability and active service.  The record in this case is negative for any indication, other than the Veteran’s own general assertions, that the lumbar spine disability or the claimed foot disability are related to service.  As noted above, the Veteran, as a layperson, is not competent to provide an opinion as to the cause of orthopedic disorders. There is sufficient competent medical evidence on file for VA to make a decision on this claim.  As such, VA’s duty to provide an examination is not triggered.
The Board further finds that all relevant evidence has been obtained with regard to the Veteran’s claims, and the duty to assist requirements have been satisfied.  Available service treatment records have been obtained and are associated with the file.  The RO searched for the identified private medical evidence and notified the Veteran of the search results.  Private medical records from Dr. Bullard, St. Elizabeth’s Medical Center, and the Tri State Pain Management are associated with the file.  The RO notified the Veteran of the search efforts and results.  The Board has reviewed the Veteran’s statements and concludes that there is no outstanding evidence with respect to the Veteran’s claims.  
Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for the back disability and the foot disability on a direct or presumptive basis.  Therefore, service connection is denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

3. Entitlement to service connection for PTSD and a personality disorder is denied.
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304 (f) (2018).  The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154 (b) (2012), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis.  See VAOPGCPREC 12-99 (October 18, 1999).
If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304 (f)(3) (2018). 
In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran’s assertion that the stressful event occurred.  A stressor need not be corroborated in every detail.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors.  Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996).
38 C.F.R. § 4.125 requires PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD.  Parenthetically, the Board notes VA implemented DSM 5, effective August 4, 2014 and DSM 5 applies to claims certified to the Board on and after August 4, 2014.  79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). 
The Board finds that the weight of the competent and credible evidence shows that the Veteran does not have a current diagnosis of PTSD in accordance with DSM.  A VA psychiatric examination was conducted in October 2015 to obtain medical evidence as to the Veteran’s current DSM diagnoses and evidence as to whether the Veteran had a current diagnosis of PTSD.  The VA examiner, a clinical psychologist, concluded that the Veteran did not meet the DSM-5 clinical criteria for a diagnosis of PTSD.  The VA examiner stated that there is no current objective evidence to suggest that the Veteran is currently struggling with any clinically significant mental health issues other than persistent maladaptive personality traits.  The VA psychologist stated that this was confirmed with the use of two objective, standardized measures, the Clinician-Administered PTSD Scale 5 (CAPS 5) and the Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2 RF).  The VA psychologist stated that the results provided a basic personality description that was consistent with the Veteran’s current circumstances and personal history and the results noted the presence of very mild symptoms of specific anxiety and worry such that one would see if someone were concerned about finances.  The VA psychologist stated that regardless, this anxiety did not reach a level that would be considered clinically troublesome or to have a significant effect on functioning.
The Veteran’s own implied assertions that he had PTSD are afforded no probative weight in the absence of a showing that the Veteran has the expertise to render opinions about medical matters.  The Veteran, as a lay person, is competent to describe observable symptoms.  Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); as to the specific issue in this case, an opinion as to a psychiatric diagnosis in accordance with DSM, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Some medical issues, such as providing psychiatric diagnoses, require specialized training, and are therefore not susceptible of lay opinions on etiology.  There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical or psychiatric diagnoses or medical opinions.
The weight of the evidence shows that the Veteran does not have a current diagnosis of PTSD.  The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current 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).  Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded.  See Brammer, supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). 
The preponderance of the evidence establishes that the Veteran does not have a current diagnosis of PTSD.  Accordingly, on this record, service connection for PTSD is not warranted.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  Gilbert, 1 Vet. App. 49.  The appeal is denied.
The record shows that the Veteran has a diagnosis of anti-social personality disorder.  See the October 2015 VA examination report.  An October 1974 service mental health consult shows a provisional impression of aggressive/depressive personality disorder; after mental status exam, the impression was explosive personality disorder.    
For purposes of Veterans’ benefits, personality disorders are considered congenital or developmental defects and are therefore not considered “diseases or injuries” under the applicable legislation.  38 C.F.R. § 4.9 (2018).  As such, personality disorders do not constitute a disability for VA compensation purposes.  38 C.F.R. §§ 3.303, 4.9, 4.127 (2018); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Service connection is, however, warranted only if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury.  See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99.
Upon review of the evidence of record, the Board finds that service connection for a personality disorder is precluded as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
In making this finding, the Board notes that personality disorders do not constitute a disability for VA compensation purposes, and therefore, cannot be granted service connection.  38 C.F.R. §§ 3.303, 4.9, 4.127 (2018). 
The Board acknowledges that disability resulting from a psychiatric disorder that is superimposed upon a personality disorder may be service connected.  See 38 C.F.R. § 4.27.  There is no evidence of additional disability due to aggravation during service of the personality disorder (a congenital defect) by superimposed disease or injury.  The evidence fails to establish evidence of additional disability due to aggravation during service of the personality disorder by superimposed disease or injury.  As such, the claim for service connection for a personality disorder is denied as a matter of law.  See Sabonis, supra.
4. Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C. section 1702 is denied.
The provisions of 38 U.S.C. § 1702 allow for service connection solely for eligibility for medical treatment for mental illness under certain conditions.  Under 38 U.S.C. § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before July 26, 1949, in the case of a veteran of World War II, before February 1, 1957, in the case of a veteran of the Korean conflict, before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service.  Under 38 U.S.C. § 1702 (b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability is developed within two years after discharge or release from active service or before the end of the two-year period beginning on the last day of the Persian Gulf War.
VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384.  In this regard, under 38 C.F.R. § 3.384, the term “psychosis” is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.  However, 38 U.S.C. § 1702 does not define “mental illness.” 
As discussed above, the Veteran’s service treatment records show an impression of explosive personality disorder in October 1974.  The service treatment records do not show a diagnosis of a psychosis.  The October 1974 mental status exam revealed no evidence of a psychosis or neurosis.  Similarly, the VA treatment records and other medical evidence of record do not establish a diagnosis of a psychosis.  The October 2015 VA examination report indicates that the Veteran’s diagnosis was personality disorder and there is no current objective evidence to suggest that the Veteran is currently struggling with any clinically significant mental health issues other than persistent maladaptive personality traits.  The medical evidence does not establish a diagnosis of a psychosis.  
As such, the evidence does not show or suggest that the Veteran had a psychosis or mental illness in service or within two years of his service discharge. 
Accordingly, as a psychosis or mental illness was not shown in service or within the two-year period after the Veteran’s discharge from active duty service, the preponderance of the evidence is against the claim for service connection for psychosis or mental illness for treatment purposes pursuant to the provisions of 38 U.S.C. § 1702, the benefit of the doubt doctrine is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C.L. Krasinski, Counsel 

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